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The corrections necessitated by the Territorial and Reserve Forces 
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MANUAL OF MILITARY LAW. 



7438 



PREFACE TO THE FIRST EDITION. 

IN July, 1879, Colonel the Rt. Hon. F. Stanley, M.P. (a), 
then Secretary of State for War, requested the Parliamentary 
Counsel Office to undertake the work of preparing Rules 
of Procedure, under section 69 of the Army Discipline 
and Regulation Act, 1879, and also of superintending the 
preparation of a Manual, which should contain an edition of 
the Act and of the above Rules with notes, and form a text 
book on Military Law. The work was commenced at once 
by the Parliamentary Counsel Office. 

The Rt. Hon. Hugh C. E. Childers, M.P. on becoming 
Secretary of State for War in 1880, approved of the continu- 
ance of the work ; and the present book, which is the result, 
was provisionally circulated by his authority, and is now 
issued by the authority of his successor, the Rt. Hon. the 
Marquis of Hartington, M.P. (fe). 

Before the Rules of Procedure could be finally settled, 
the Army Discipline and Regulation Act, 1879, was repealed 
and replaced by the Army Act, 1881, and a complete revision 
of Section VI (Discipline) of the Queen's Regulations, 1885, 
also took place. 

These changes explain the delay which unavoidably 
occurred in the completion of the work commenced in 1879. 

The book contains chapters giving a general view of the 
Army Act, 1881, of the Rules of Procedure, and of the his- 
tory of military law and organisation. Chapters have also 
been added on collateral matters, as the Law of Riot, &o., 
and the Customs of War. These form Part I of the book. 

The Army Act, 1881, and the Rules of Procedure with 
explanatory notes follow ; and these, with some additional 
forms, &c., complete Part II of the book. Part III contains 
miscellaneous enactments, regulations, and forms, including 
the RegimentalDebts Act, and the regulations made under 
it ; and a set of forms illustrative of the chapter on the 
Customs of War. 

The chapters were written by Sir Henry Thring, K.C.B., 

I Parliamentary Counsel (c); Mr. H. Jenkyns, C.B., Second 

Parliamentary Counsel (d) ; Mr. C, P. Ilbert, legal member 

() Now the Earl of Derby. 
(b) Now the Duke of Devonshire. 
| (c) Subsequently Lord Thring, K.C.B. 

(d) Subsequently Sir H. Jenkyns, K.C.B. , and Parliamentary Counsel. 

(H.L.) 2 



2051 



PREFACE. 



of the Council of the Viceroy of India (a) ; Lfc.-Col. Blake, 
R.M.L.I. ; Mr. A. C. Meysey-Thompson, of the Inner 
Temple ; and the Editor. The' Notes to the Army Act and 
to the Rules were for the most part written by Mr. H. 
Jenkyns and the Editor ; the valuable notes of the decisions 
of the Judge Advocate- General have been supplied from the 
office of the Judge Advocate-General, and the illustrations 
of the forms of charges have been framed by Col. Rocke, 
Deputy Judp-e Advocate. The Index was framed by Mr. W. 
L. Selfe, of Lincoln's Inn (6). 

The general editorship of the work was entrusted to Mr. 
G. A. R, FitzGerald, of the Parliamentary Bar, who has 
during its preparation been in constant communication with 
the office of the Parliamentary Counsel. Brigadier- General 
Elles, C.B.,late Assistant-Adjutant-General (c), has rendered 
invaluable aid during its whole progress. The Editor is 
also much indebted to the criticisms and careful corrections 
of Mr. W. L. Selfe. 

Acknowledgment also is due to Major- General R. Carey, 
C.B., late Deputy Judge Advocate, for the free use of his 
" Military Law and Discipline," a work on the Mutiny Act 
and Articles of War, which was undertaken and completed 
shortly before the old form of the Military Code became 
obsolete. On this account the work, although printed by 
authority at the War Office, was never published. 

The debt which the army owes to the late Captain T. F. 
Simmons for his book on the Constitution and Practice of 
Courts-Martial, and to his son (sometime Major of Brigade, 
North-Eastern District, and now a Canon of York), the 
editor of subsequent editions, is well known. The book 
was the only complete modern treatise 011 the practice of 
courts-martial, which is almost as important as the military 
law itself. 

Some of the editions were undertaken at the request of the 
military authorities, and in 1868 the editor was informed 
by the Adjutant-General that His Royal Highness the Field- 
Marshal Commanding-in-Chief recognised the efforts he had 
made in collecting the precedents, rules and axioms which 
guided the a ministration of military law (d). 

The value of the labours of the author and editor has been 
still further illustrated by the new Rules of Procedure, 
which in many instances embody the course of procedure 
suggested in " Simmons on Courts-Martial." 



(a) Now Sir C. P. Ilbert, K.C.S.I., and Clerk of the House ofi 
Commons, late Parliamentary Counsel. | 

(b) Now His Honour Judge Selfe. 

(c) Subsequently Major-General Sir W. K. Elles, K.C.B. 

(d) In the Queen's Regulations of 1868 the book was recommended as 
a useful book of reference, and in the General Order of 1st November, 
1873. proscribing tlie examination of regimental officers previous to pro- 

;, it was mentioned as useful for officers preparing for examination. 



PREFACE. 



When the Army Discipline and .Regulation Act of 1879 
passed, the Rev. Canon Simmons, learning that the Secretary 
of State contemplated the issue of a Manual of Military Law 
under authority, generously placed his book at the disposal 
of the Secretary of State for the good of the Service. The 
readers of the present Manual will see that extensive use 
has been made of the offer, and that much of " Simmons 
on Courts-Martial " survives in the following pages. 

The book has been submitted to and carefully revised by 
the Bt. Hon. G. O. Morgan, Q.C., M.P., Judge Advocate- 
General (a). 

His Boyal Highness the Field-Marshal Commanding-in- 
Chief has also been pleased to approve of the work. 

An abbreviated edition of the work, in the form of a prac- 
tical manual, will be issued as soon as possible. 

May, 1884. 



ADVERTISEMENT TO THE SECOND EDITION. 

This edition has been revised throughout by the Editor 
with the advice and assistance of Mr. Jenkyns and Colonel 
W. R. Lascelles, A.A.G. 

November, 1887. 



ADVERTISEMENT TO THE THIRD EDITION. 

New Rules of Procedure were issued in 1893, chiefly in 
consequence of the amendments made in the Army Act, 
which fused together the Field General Court-Martial and 
the Summary Court-Martial ; and these Rules, as well as 
the various amendments of the Army Act, are embodied in 
the present edition, which has again been revised by the 
Editor, with the advice and assistance of Colonel Hildyard, 
late Assistant Adjutant-General, and now Commandant of 
the Staff College. The Index has been completely re-ca.st 
in a form which, it is hoped, will increase its usefulness to 
Officers and others ; and the Editor wishes particularly to 
acknowledge the ability and industry brought to this por- 
tion of the work by Mr, James Huggett, of the War Office. 

July, 1894. 



(a) Subsequently Sir GK O. Morgan, Bart. 



VI PREFACE. 



ADVERTISEMENT TO THE FOURTH EDITION. 

The former Editor, Mr. G. A. R. FitzGerald, has been 
reluctantly obliged to relinquish the editorship, and Mr. F. F. 
Liddell (a) has been appointed to succeed him. 

The chief changes in this edition are due to the applica- 
tion of the Criminal Evidence Act, 1898, to courts-martial. 
Rules for that purpose were published early in 1899. 
These have since been incorporated in a new edition of the 
rules, which also makes a few other slight changes in 
court-martial procedure. 

In revising the book the Editor has had the benefit of 
the assistance of Major W. D. Jones, of the Wiltshire 
Regiment, and is especially indebted to him in respect of 
the revision of Chapters X and XI and the Appendices to 
the Rules. 

Chapter VI has been revised by Sir C. P. Ilbert, who has 
been aided in the revision by Mr. W. Guy Granet, Barrister- 
?.t-Law. 

Chapter VII has been rewritten by the Editor with the 
assistance of Sir John Scott, K.C.M.G., Deputy Judge 
Advocate-General. 

Chapter IX has been revised by Sir Henry Jenkyns, who 
is indebted for valuable suggestions to Mr. Oman, Fellow 
of All Souls College, and Mr. Hassall, Student of Christ 
Church, Oxfoi'd. 

In Part III the Volunteer Acts have been added. A table 
of the contents 'of the chapters has been added, and the 
index recast in a shorter form. 

August, 1899. 



ADVERTISEMENT TO THE FIFTH EDITION. 

This edition has been edited by Mr. W. M. Graham- 
Harrison in succession to the late Editor, Mr. F. F. Liddell, 
who resigned on being appointed Second Parliamentary 
Counsel. 

The various amendments made in the Army Act since 
(especially the introduction of the punishment of 
detention), and the re-organisation of the sjstem of com- 
mands and of the War Office, have necessitated a new issue 
of the Rules of Procedure (which is embodied in this 
edition), and a considerable number of alterations in other 
parts of the Manual. 



(a) Now Second Parliamentary .Counsel. 



PREFACE, Vll 

The index is entirely new, and has been prepared in 
the War Office, tinder the supervision of the Editor. 

The Editor is indebted to Mr. H. W. C. D^vis, Fellow 
of Balliol College, Oxford, for several corrections in 
Chapters II and IX. 

The Territorial and Reserve Forces Act, 1907, did not 
become law till after all the book was in type, and ii 
consequence it has been found impossible, without unduly 
delaying the issue of this edition, to insert in Chapter Xi 
or elsewhere an account of all the alterations effe3ted by 
that enactment. 



November, 1907. 



vu PREFACE. 



NOTE. In a work covering so much ground there must inevitably 
l-'e errors ; any corrections or suggestions will be gratefully received ; 
they should be addressed to 

" The Editor 

(Manual of Military Law), 
Care of the Secretary of the War Office, 

War Office, S.W." 



CONTENTS. 



PART I. 

CHAPTER PAGH 

I. INTRODUCTOEY .. .. .. .. .. .. 1 

Written by Lord Thring. 

II. HISTOBY OF MILITARY LAW . . . . . . . . 6 

Written by Lord Thring. 

III. CRIMES AND SCALE OF PUNISHMENTS .. .. .. 15 

Written by Mr. G. A. B. FitzGerald. 

IV. ARREST : INVESTIGATION BY COMMANDING OFFICER : 
SUMMARY POWER OF COMMANDING OFFICER : PRO- 
VOST-MARSHAL . . . . . . . . . . . . 25 

Written by Mr. G. A. R. FitzGerald, assisted by SirH. Jenkyns. 

V. COURTS-MARTIAL .. .. .. .. .. .. 35 

Written by Mr. G. A. R. FitzGerald, assisted by Sir H Jenkyns. 

VI. EVIDENCE . . . . . . . . . , . . . . 55 

Written by Sir C. P. Ilbert. 

VII. OFFENCES PUNISHABLE BY ORDINARY LAW . . . . 85 

Originally written by Mr. A. C. Jleysey-Thompson, Q.C. 
Re-written by Mr. F. F. Liddell. 

VIII. POWERS OF COURTS OF LAW IN KELATION TO COURTS- 
MARTIAL AND OFFICERS . . . . . . . . . . 119 

Written by Lt.-Col. Blake, B.M.L.I., and Mr. G. A. R. 
FitzGerald. 

IX. HISTORY OF THE MILITARY FORCES OF THE CEOWN. . 146 
Written by Sir H. Jenkyns. 

X. ENLISTMENT . . . . . . . . . . . . . . 184 

Written by Sir H. Jenkyns. 

XI. CONSTITUTION OF THE MILITARY FORCES OF THE 

CROWN . . . . 192 

Written by Sir H. Jenkyns. 

XII. EKLATION OF OFFICERS AND SOLDIERS TO CIVIL LIFE.. 208 
Written by Sir H. Jenkyns. 

XIII. SUMMARY OF THE LAW OF KIOT AND INSUERECTION. . 211 

Written by Lord Thring. 
XIV. THE LAWS AND CUSTOMS OF WAR ON LAND .. .. 222 



x ! CONTENTS. 

PART II, 

PAGE 

THE ARMY (ANNUAL) ACT, 1906.. 25/7 

THE ABMT ACT, with Notes . . 259 

RULES OF PHOCEDUBE, with Notes . . . . 448 

Appendix I. (Forms of Charges) 529 

Further Illustration s of Charges 543 

Appendix II. (Forms as to Courts-Martial) 

Memoranda for the guidance of Courts-M artial . . 582 

Appendix III. (Forms of Commitment) ... .. .. 585 

Further Forms .. 591 

KULES FOB FIELD PUNISHMENT .. 598 

FOEM OF COUET-MAETIAL WABEANTS . . . . 599 

FOEJI OF APPLICATION FOE COUET-MAKTIAL . . . . 604 

OBDEE IN COUNCIL (DISCIPLINE ON BOARD SHIP) 605 



PART III. 

MISCELLANEOUS ENACTMENTS, REGULATIONS, AND FOEMS. 

Extract from the Petition of Right . , . . . . . . 613 

Extracts from Railway Acts . . . . . . . . . . 614 

Regulation of the Forces Act, 1871 (unrepealed sections) . . 617 

Extract from National Defence Act, 1888. . .. .. 619 

Reserve Forces Act, 1882 . . . . 620 

Reserve Forces Act, 1890 . . . . . . . . . . 630 

Reserve Forces and Militia Act, 1898 ., .. .. .. 631 

Reserve Forces Act, 1899 . . , . . . . . . . . . 632 

Reserve Forces Act, 1900 , 632 

Reserve Forces Act, 1906 . . . . . . . . . . . 632 

Militia Act, 1882 633 

Extract from the Reserve Forces and Militia Act, 1898 . . . . 652 

Militia and Yeomanry Act, 1901 . . . . . . . . 653 

Militia and Yeomanry Act, 1902 . . 653 

Volunteer Act, 1863 ,, 654 

Volunteer Act, 1869 666 

Extract from the Regulation of the Forces Act, 1881 .. .. 667 

Volunteer Act, 1895 668 

Volunteer Act, 1897 .. . . .. .. .. 668 

Volunteer Act, 1900 669 

Regimental Debts Act, 1893. . . . 669 

Regulations under Regimental Debts Act, 1893 . . . . . . 677 

Royal Warrant Soldiers' Effects Fund 686 

Territorial and Reserve Forces Act, 1907 . . 688- 

1>'DEX . . . . . . , . . . . . . , j 712 



LIST OF ABBREVIATED REFERENCES. 



Bac. Abr. .. .. 

Barn. & Adol. .. 

Barn. & Aid. .. . . 

Barn. & Cr. . . .. 

Best and Smith .. 

Bro. P. C 

Broderip & Bingham . . 

Burr 

Campbell . . . . 

Car. & Marsh. . . 
C . & 1 . . t 

Christian's Blackstone. . 

Clode Mil. Forces 

Cobbett, Parl. Hist. . . 
Coke Inst. 

Comm. Journ. 
Com. Dig. 

Cox Crim. Ca. . . . . 

Dowl. & R. , . . . 
East . . . . . . 

r . & I 1 . . . . . 

Grose, Mil. Antiquities 

Hale, Hist. Com. Law. . 
Hallam, Const. Hist. . . 

Hawkins . . 

Hough, Mil. Prec. . . 

Jur. (N.S.) 

K.. 1\ . . . , . , . 

L.J. (N.S.) .. 
L.R., Ch. Diy 



Bacon's Abridgment of the Law, 5th edition, 
1798. 

Barnewall and Adolphus' Keports, King's 
Bench, 5 vols., 1830-34. 

Barnewall and Alderson's Reports, King's Bench, 
5 yols., 1817-22. 

Barnewall and Cres3well's Reports, King's Bench,. 
10 vola., 1822-30. 

Best and Smith's Reports. 

Brown's Cases in Parliament. 

Broderip and Bingham's Reports. 

Burrow's Reports, 5th edition, 5 vols., 1812. 

Campbell's Reports. 

Carrington & Marshman's Reports. 

Carrington & Payne's Reports, 9 rols., 1823-41. 

Blackstone's Commentaries on the Laws of 
England, edited by Edward Christian, 4 vols., 
1803. 

Clode's Military Forces of the Crown, 2 yols., 
1869. 

Cobbett's Parliamentary History. 

Coke"'s Institutes of the Laws of England, 4 rols., 
1832 and 1817. 

Journal of the House of Commons. 

Cornyn's Digest of the Laws of England, 5th 
edition, 7 yols., 1822. 

Coz's Criminal Cases. 
Dowling and Ryland's Reports. 
East's Reports, 16 vols., 1801-14. 
Foster and Fmlason's Reports. 

Military Antiquities and History of Ancient 
Armour, by Capt. F. Grose, 1801. 

Hale's History of the Common Law, 4thJEdition. 

Constitutional History of England, by A. H. 
Hallam. 

Hawkins' Pleas of the Crown, 2 vols. 6th edition, 
1777. 

Precedents in Military Law, by W. Hough, 
Lieut.-Col. E.I.C.S., 1855. 

Jurist (new series). 

The King's Regulations and Orders for the- 
Army (1904 edition). 

Law Journal (new series). 

Law Reports, Chancery Division. 



Xll 



LIST OF ABBREVIATED REFERENCES. 



L.R., G.C.HI. , . . . 

L.R., Ex. . . . . 
L.E., H.L 

L.E., P.C 

L.E., Q.B 

L.E., Q.B.D 

L.E. [18 ] A.C. 
L.E. [18 ] Oh. 
L.E, [19 ] K.B. 

L.E. [18 ] Q.B. 

Lewin, C.C. 
Lords' Journ. . . 
Lord Raymond. . 

Man. & Grr 

M. &S 

M. & W 

Mod. Eep. 

Moo. C.C 

Shower's Eep. . . . . 
Smith, Lead. Ca. , . 
Steph. Comm. . . 

Sleph. Dig. Crini. Law 
Steph. Dig. Ev. 
Stubbs, Constit. Hist. . . 

Taunt. . . 

JL..tC. . 

W.E 

Well. Desp. . . . . 
Wilson's Eep 



Law Eeports, Crown Cases Eeserved. 
Law Eeporte, Exchequer. 

Law Eeports, English and Irish Appeals (House 
of Lords). 

Law Reports, Privy Council Appeals. 
Law Reports, Queen's Bench. 
Law Reports, Queen's Bench Division. 
Law Reports, Appeal Cases since 1890. 
Law Reports, Chancery Division, since 1890. 

Law Reports, King's Bench Division, since 
1901. 

Law Reports, Queen's Bench Division, 1890 
to 1901. 

Lewin's Crown Cases. 

Journals of the House of Lords. 

Lord. Ravmond's Eeports, 2 vols. 4th edition, 
1792. 

Manning and Granger's Eeports. 

Maule and Selwyn's Eeports, 6 vols. 1814-29. 

Meeson and Welsby's Eeports, 16 vols. 1837-49. 

Modern Reports, 12 vols. 5th edition, 1793. 

Moody's Crown Cases Eeserved. 

Shower's Eeports, 2 vols. 2nd edition, 1794. 

Smith's Leading Cases, llth edition. 

Stephen's Commentaries on the Laws of England, 
4 vols. 14th edition, 1903. 

Digest of the Criminal Law, by Sir James Fitz- 
james Stephen, K.C.S.I. 6th edition, 1904. 

Digest of the Law of Evidence, by Sir James Fitz- 
james Stephen, K.C.S.I. 6th edition, 1904. 

Constitutional History of England, by William 
Stubbe, M.A. Eegius Professor of Modern 
History, Oxford. 

Taunton's Reports (Common Pleas, 1807-19), 
8 vols. 

Term Eeports (Durnford and East), 4 vols. 
1794-1809. 

Weekly Reporter (Irish). 
Wellington Despatches, 1838. 
Wilson's Reports. 



REFERENCES TO KING'S REGULATIONS. 



Page in 
M.M.L. 


King's Regulations 
Para, in 


Page in 
M.M.L. 


King's Regulations. 
Para, in 


1904 
Edition. 


1907 
Edition. 


1904 1907 
Edition. Edition. 


30 


489 


556 


42 


515 


580 


31 


464 


499 


49 


513 


583 


21 


472479 


508513 


52 


528 


593 


22 


475 


510 


53 


523, 524, 525 


588, 589, 590 


22 


461C 


497 


53 


582585 


602606 


24 


518 


583 


54 


586, 627 


607, 645 


25 


433441 


465 47 . 


54 


520 


585 


25 


434, 435 


466, 467 


54 


579625 


60 J 644 


25 


433 


465 


54 


627 


645 


25 


437 


469 


1S4 


1747 


264 


26 


438 


470 


184 


17471754 264269 


26 


194 


127 


184 


1744 262 


26 


436 


468 


185 


1744 262 


26 


439 


471 


185 


1747 264 


27 


441 


473 


185 


17571759 270272 


27 441444 


473476 


135 


1812 


273 


27 445 


477 


137 


17601768 


323334 


27 


444 


482 


138 


21252132 


1900190(J 


27 


446 


473 


190 


17901827 


376412 


27 


450 


482 


191 


18201822 


406 103 


27 


1577 


1612 


191 


555 


522 


27 


629 


648 


194 


1 


1761 


28 

28 


431 
431, 432 


463 
463, 464 


195 


336 


f 217236 
\ 37-47 


29 


452, 466 


484, 50L 


195 


425 


456 


29 


452 


484 


196 


1785, 1786 


367, 36S 


29 


464 


499 


199 


1789A 


375 


29 


451453 


483491 


200 


1 (b) and (c) 


1761 


29 


446 


478 


202 


3(v) 


217 (v) 


30 


454456 


487489 


205 


3(v) 


217 (v) 


30 


451 


483 


207 


18511868 


337353 


31 


454 


487 


207 


3(v) 


217 (v) 


32 


460 


493 


208 


414 


442 


32 


464 


499 


209 


731739 


1354 135S 


32 


756 302 210 


421 


A.O. 252 of 'OS 


32 


472479 


503513 210 


419421 


448 


32 


467 


502 


217 


280 


955 


32 


468 


503 


219 


273292 


948963 


33 


461A 


495 


219 


281, 282 


956. 957 


33 


544 


675 


219 


292 


968 


33 


471 


507 


220 


282, 283 


957, 958 


33 


452466 


484501 


272 


495 


560 


33 


426, 427 


456^458 


276 


483 


554 


34 


644652 


661661 


273 


430 


462 


34 


535, 536 


599 


279 


548578 


514546 


35 


411 


438 


231 


562564 


529-531 


36 


456 


489 


231 


496 


561 


36 


511 


576 


284 


539 


668, 669- 


37 


513 (ii) 


578 (ii) 


236 


498 


563 


37 


513 


578 


288 


452 


4*5 


37 


15 


229 


239 


497501 562566 


38 


486 


552 


2S9 


497, 498 562, 563 


38 


492 


559 


297 


423 453 


39 


492 


559 


299 


438A 


_ 
5oo 


39 


454-459 


487492 


299 


439 


556 


40 


481485 


518551 


:: 2 


194 127 


40 


502, 503 


5*7, 568 


304 


520 585 


40 


486 


552 


307 


431 463 


40 


504, 505 


569, 570 


303 


431 463 


41 


514 


579 


308 


431450 463 4S2 



XIV 



REFERENCES TO KING S REGULATIONS. 





King's Regulations. 




King's Regulations. 




Para, in 




Para, in 


Page in 




Page in 




M.M.L. 






M M.L. 








1901 


1907 




1904 


1907 




Edition. 


Edition. 




Edition. 


Edition. 


308 


433, 441 


465, 473 


431 


425 


456 


308 


452, 464 


484, 499 


432 


470 


506 


308 


425 


456 


432 


756A 


303 


308 


451459 


483492 


433 


744, 745 


282, 283 


310 


425 


456 


453 


431, et seq. 


463, et seq. 


310 


454459 


487492 


453 


432 


464 


310 


471 


507 


453 


457 


490 


310 


464 


499 


454 


451458 


483491 


310 


628642 


646660 


455 


456 


489 


310 


477479 


512. 513 


455 455 


488 


310 


461C 


497 


455 


464 


499 


311 


473 


509 


455 454 


487 


311 


461 A 


495 


455 457, 458 


490, 491 


311 


454 


487 


457 460471 


493507 


311 


461 B 


496 


457 472-479 


508513 


312 


460466 


493501 


457 


461 


494 


312 


464 


499 


457 


453, 471 


485, 507 


312 


453 


485. 507 


457 


460 


493 


313 


454 


487 


460 498 


563 


313 


483, 486 


547, 552 


460 498A 


564 


313 


425 


456 


462 492 


559 


313 


411 


438 


463 480506 


547571 


315 


513 


578 


463 511, 513 


576, 57 S 


323 


525 


590 


463 513 (i) 


578 (i) 


326 


522526 


587591 


463 511 


576 


326 


612 


632 


465 508 


572 


328 


4*5 


456 


466 513 


578 


328 


579585 


600606 


484 487 


553 


331 


579585 


600606 


485 


2150, 2190 


1916, 1921 


334 


586 


607 


486 


518 


583 


334 


628642 


647660 


4S6 


516 


581 


334 


586642 


607 660 


487 


524, 525 


589, 590 


334 


625 


607617 


487 


526 


591 


335 


425 


456 


487 524, 525 


589, 590 


337 


590, 591 


610. 611 


JQQ 


( 527, 529 


592, 594 


337 


425 


456 


^OO 


X 531 


5P6 


59 


519 


584 


488 


528 


593 


341 


542 


673 


488 


579, et seq. 


600, et seq. 


342 


1842 


273 


488 


524 


589 


342 


447 


479 


488 


582. 538 


602. 608 


342 


572578 


541546 


488 583 


603 


343 


535 


599 


488 


5S9 59U 


609612 


344 


521 


586 


489 


523 


588 


344 


17421845 


262, et seq. 


491 


526 


591 


345 


1744 


262 


493 


510 


575 


345 


1842 


27?, 


497 


514 


579 


346 


1844 


274 


498 


514 


579 


346 


1842 


273 


503 


506 


571 


347 


21252134 


1900-1908 


511 


527 


592 


351 


532 


597 


512 


530 


595 


351 


17601787 


323369 


512 


-'165 


1925 


352 


17571759 


270272 


513 


524 


589 


352 


17471759 


264 272 


513 


525 


590 


356 


18201822 


406408 


522 


537547 


666678 


357 


17901805 


376, 390 


523 


542 


673 


357 


18281836 


413421 


525 


532 


597 


357 


1742 


261 


525 


425 


456 


377 


2165 


1925 


525 


426 


457 


384 


627, et seq. 


645, et seq. 


525 


427 


458 


385 


586 


607 


525 


452 


484 


388 


469 


504, 505 


525 


466 


501 


395 


1805 (vii) 


390 (vii) 


532 


496 


561 


397 


550 553 


517, .'.lu 


532 


498 


563 


403 


456 


489 


577 


520 


585 


404 


470 


506 









PART I. 



CONTENTS OF CHAPTERS. 



CHAPTER I. INTRODUCTORY. 

PAGB 

Object of work . .. .. .. .. .. .. 1 

Description of laws with which officers have to deal . , . . 1 

Description of military law .. .. .. , . .. .. 1 

Description of law of riot and insurrection . . . . , . . . 1 

Description of laws and customs of war . , . . . . . . 2 

Their scope and object . . . . . . . . . . . . . . 2 

Reasons for adopting term " laws and customs of war >; . . 2 

Arrangement of contents of book . . . . . . . . . . 3 

Army Act and Rules . . . . . . . . . . . . . . 3 

Royal Marines . . . . . . . . . . . . . . . . 4 

Explanation of expression " martial law " . . . . . . . . 5 

CHAPTEB II. HISTOSY OF MILITARY LAW. 

Definition of military law .. .. .. .. .. .. fi 

Object of military law .. .. .. .. .. .. .. 6 

Military law in early times consisted of Articles of War issued 

when war broke out . . . . . . . . . . . . (3 

Government of troops in time of war by Articles of War. . . . 6 

Account of early Articles of War . . . . . . . . . . 6 

Severity of early Articles . . . . . . . . . . . . 7 

Illegal attempts to enforce military law in time of peace . . . . 7 

Court of Chivalry the origin of military courts . . . . . . S 

Constitution of Court of Chivalry . . . . 8 

Civil jurisdiction of Court of Chivalry . . . . . . . . 8 

Criminal jurisdiction of Court of Chivalry . . . . . . . . 8 

Administration of military law by Court of Chivalry . . . . 8 

Extinction of office of High Constable . . . . . . . . . 9 

Administration of military law by virtue of Commissions . . . . 9 

Councils of War.. .. .. .. .. .. .. .. 9 

Courts-martial . . . . . . . . . . . . . . . . 9 

Military code in time of peace rendered necessary by establish- 
ment of standing army . . . . . . . . . . . . 10 

Occasion of passing of first Mutiny Act . . . . . . 10 

Objects and scope of first Mutiny" Act .. .. .. ..11 

Second Mutiny Act .. .. , .. ..11 

Succession of Mutiny Acts till 1878 . . . . . . . . ..11 

Periods in Mutiny Act worthy of observation . . . . . . 11 

From 1689 to 1712 11 

Lapse of Mutiny Act from 1698 to 1702 in time of peace . . . . 12 

Renewal of Act in 1702 12 

Power to make Articles of War binding on the army in time of 
peace when out of the kingdom, conferred by Mutiny Act of 

1712 12 

Power extended by Mutiny Act of 1715 12 

Mutiny Act of 1718 ..'.... 13 



XVI CONTENTS OF CHAPTERS. 

PAGR 

Extension of Mutiny Act in Colonies. . .. .. .. ..13 

Power to govern by Act and statutory Articles in kingdom and 
colonies in time of peace co-extensive with power to govern 
by prerogative Articles in foreign countries in time of war . . 13 

Case of Barwis v. Keppel . . . . . . . . . . . . 13 

Extension of Mutiny Act and statutory Articles to foreign 

countries in 1803 . . . - . . . . . . . . . . 14 

Prerogative Articles finally superseded . . . . . . . - 14- 

Army Discipline and Regulation Act, 187? . . . . . . . . 14 

Army Act, 1881 .. .. .. .. .. .. ..14 

Annual Acts .. .. .. .. .. .. .. .. 14 

CHAPTER III. CRIMES AND SCAIB or PUNISHMENTS. 

Classification of military offences . . . . . . . . . . 15 

Principle of classification . . . . . . . . . . 15 

Offences dealt with in this chapter . . . . . . . . . . 15 

Definition of mutiny . . . . . . . . . . . . 15 

Framing charge of mutiny . . . . . . . . . . . . 16 

Definition of sedition . . . . . . . . . . . . . . 16 

Offences of disobedience to a lawful command . . . . . . 16 

Definition of graver offence of disobedience . . . . . . 16 

Of less offence of disobedience. . .. .. .. .. ..17 

What is a lawful command r . . . . . . . . . . 17 

Duty of obedience . . . . . . . . . . . . 17 

Keligious scruples .. .. .. .. .. .. ..18 

Desertion and absence without leave . . . . . . . . 18 

Evidence of intention not to return . . . . . . . . 18 

Distance by itself not a criterion . . . . . . . . 18 

Evasion of important service . . . . . . . . . . 18 

Desertion by man on furlough. . .. .. .. .. 1S> 

Attempt to desert . . . . . . . . . . . . 19 

Soldier surrendering himself .. .. .. .. .. ..19 

General provisions as to desertion .. .. .. .. .. 19- 

Fraudulent enlistment . . . . . . . . . . . . 19 

Stealing and embezzlement, when tried by court-martial . . . . 20' 

Stealing from a comrade . . . . . . . . . . 20 

Embezzlement . . . . . . . . . . . . . . 21 

Drunkenness of officer . . . . . . . . . . 21 

of non-commissioned officer . . . . . . 21 

Jurisdiction of courts-martial to try drunkenness of private soldier 21 

Drunkenness of soldier on duty . . . . . . . . . . 21 

Drunkenness of soldier after being warned for duty . . . . 22 

Drunkenness of soldier not on duty . . . . . . . . 22 

Drunkenness considered in relation to other crimes . . . . 22" 

Conduct to prejudice of military discipline .. .. .. ..23 

Offences committed " on active service " .. .. .. ..23 

Offences punishable by ordinary law . . . . . . . . 23 

Scale of punishments . . . . . . . . . . . . 23 

Punishment of detention .. .. .. .. .. .. 24 j 

Field punishment .. .. .. .. .. .. 24 j 

Articles of War . . . . . . . . . . . . . . . . 24 

CHAPTER IV. ARREST : INVESTIGATION BY COMMANDING OFFICER : 
SUMMARY POWER OF COMMANDING OFFICER: PROYOST-MARSFAL. 

(/'.) Arrest. 

Military custody of person charged with offence . . . 25 

Arrest of officer . . . . . . . . . . . . . . . . 25 

Arrest may be close or open . . . . . . .. . . . . 25 

Arrest usually preceded by investigatlouj .. .. .. ..25 



CONTENTS OF CHAPTERS. XV11 

PAGE 

Arrest of senior by junior officer in certain circumstances . . . . 26 

Case of Lt,. -Col. H.' in 1819 26 

Officer under arrest has no right to demand court-martial . . . . 26 

Release of officer . . . . . . . . . . . . . . 26 

No privilege of Parliament from arrest .. .. .. ..26 

Non-commissioned officers .. .. .. .. .. ..26 

Confinement of private soldiers .. .. .. .. ..27 

Brenkiiifj; arrest . . . . . . . . . . . . 27 

| Improper release and suffering escape .. .. .. 27 

Receiving accused persons into custody .. .. .. ..27 

Account of offence .. .. .. .. .. .. ..28 

Omission to deliver account .. .. .. .. .. ..28 

Duty of cotnmandei' of guard to report name and offence of accused 28 

(it'.) Investigation bi/ Commanding Officer. 
Investigation by commanding officer 

In case of officer . . . . . . . . . . . . 28 

In case of si 'Idier .. .. .. .. .. .. ..29 

Duty of "fficer conducting investigation .. .. .. .. 29- 

Examination of witnesses . . . . . . . . . . 29 

Decision of commanding officer .. .. .. .. .. 29 1 

Caution as to exprrssing opii'ion .. .. .. .. .. 30 

Right of soldier to claim c-ourt- martial .. .. .. .. 30 

Adjournment for taking don summary of evidence .. .. 30 

Mode of taking summary .. .. .. .. .. ..30 

Remand of accused for trial by court-martial .. .. .. 31 

Use of summary of evidence .. .. .. .. .. ..31 

Convening court .. .. .. .. .. .. .. ..31 

(Hi.) Summary Power of Commanding Officer. 
I Power of commanding officer to deal with non-commissioned officer 

or soldier .. .. .. .. .. .. .. ..31 

Drunkenness .. .. .. .. .. 32 

Absence without leave .. .. .. .. .. .. ..32 

Forfeiture of pay .. .. .. .. .. .. 32 

Right of soldier to demand district court-martial .. .. ..33 

No trial after punishment by commanding officer .. .. 3?$ 

Delegation of power by commanding officer .. .. .. .. 33 

Commanding officer of detachment .. .. .. ..33 

(iv.\ Provost-marshal .. .. ..33 

(v.) Discipline on board H.M.'s ships ., . . 34 

CHAPTER V. COURTS-MARTIAL. 
(i.) Constitution and Jurisdiction. 

Three descriptions of court-martial .. .. .. .. ..35 

Powers of 

Regi 1 1 ental court-martial .. .. .. .. 35 

District court-inardal .. .. .. . . .. ..35 

General court-martial .. .. .. 35 

Jurisdiction m respect of certain offenders .. ..35 

Further observations on jurisdiction . . . . . . . . 36 

Composition of courts .. .. .. .. 36 

Legal minimum .. .. .. .. .. .. 36 

Composition of 

Regimental court-martial .. .. .. .. ..36 

Disf.iict i-ourt -martial **6 

General court-martial .. .. .. .. ..37 

Trial of members of auxiliary forces .. .. .. .. ..37 

(M.L.) b 



XVllt CONTENTS OF CHAPTERS. 

PAGE 

Greneral provisions . . . . . . . . . . . . 37 

President . . . . . . . . , . . . . . . . 37 

Remarks on trial of offences by different courts . . . . . . 37 

Convening officer 

Of regimental court . . . . . . . . . . . . 38 

Of district court . . . . . . . . . . . . 38 

Of general court . . . . . . . . . . . . 38 

Warrants for convening in U. K. . . . . . . 38 

In India and elsewhere out of U. K. . . 

Contents of warrants . . . . . . . . . . 38 

Powers under warrant for convening general courts -martial . . 39 

Field general court-martial . . . . . . . . . 39 

Object of field general court . . . . . . . . . . 39 

Constitution and powers . . . . . . . . . . 39 

(M.) Procedure. 

Application for court-martial by commanding officer . . . . 39 

Duty of convening officer in considering application for court-martial 39 

Power to refer to superior authority . . . . . . . . 40 

Considerations to be borne in mind by convening officer . . 40 

Removal of offender for trial . . . . . . . . . . 40 

Notice to accused of charges, &c. . . . . . . . , 40 

Accused to have opportunity of preparing defence . . . . . . 41 

Assembly of court . . . . . . . . . . . . 41 

Hours of sitting . . . . . . . . . . . . . . 41 

Proceedings before commencement of trial . . . . . . 41 

Eligibility and freedom from disqualification of 

Members of court . . . . . . . . . . . . 41 

President . . . . . . . . . . . . . 41 

Judge advocate . . . . . . . . . . . . 41 

Adjournment if court not properly constituted, or accused not 

properly charged . . . . . . . . . , . . 42 

Amenability of accused to jurisdiction .. .. ., ..42 

Prosecutor may be present . . . . . . . . , . 42 

Conclusion of preliminary proceedings . . . . . . 42 

Seat for accused, when allowed . . . . . . . . 42 

Objections by accused to members of court .. ,. .. ..42 

Procedure if objections allowed .. .. ., .. ..43 

Swearing of 

Members . . . . . = . . . . . . . . 43 

Judge advocate and officers attending for instruction . , . . 43 

Shorthand writer and interpreter . . . . . . . . 43 

Court may be sworn to try several offenders . . . . . . 43 | 

Arraignment of accused . . . . . . . . . . 43 

Claim, of accused persons to be tried separately . . . . 43 

Objection by accused to charge before plea . . . . . . 44 

Plea to jurisdiction of court . . . . . . . . . . 44 

Plea in bar . . . . . . . . . . . . . . 44 

Plea of "guilty" -. ..44 

Procedure on plea of " guilty " . . . . . . . . 44 

Refusal to plead, &c. . . . . , . . . . , , 45 

Plea of " not guilty " . . . . . . . . . . . . . . 45 

Duty of prosecutor . . . . . . . . . . . . 45 

Examination of witnesses for prosecution . . . . . . 45 

Defence of accused . . . . . . . . . . . . 45 

Procedure if accused calls witnesses other than witnesses to character 45 

Latitude allowed in defence . . . . . . . . . . 46 

Court not to be influenced by supposed intention of convening 

officer . . . . . . . . . . . . . . 46 

Friend of accused . . , . . . . . . . . . 46 



CONTENTS OF CHAPTERS. XIX 

PAGE 

Counsel . . . . . . . . . . . . . . . . 46 

Examination of witnesses . . . . . . . . . . 47 

Evidence to be read over to witnesses . . . . . , 47 

Recalling witnesses . . . . . . . . . . . . . . 47 

Expenses of witnesses . . . . . . . . . . . . 47 

Interpreter . . . . . . . . . . . . . . 47 

Remarks on employment of interpreter . . . . . . 48 

Court is open, but may be closed for deliberation . . . . , . 48 

Absence of member . . . . . . . . . . . , , < 48 

Member cannot abstain from voting . . . . . . . . 48 

Finding 

Of " not guilty " ,. .. .! 49 

Of "guilty " ". ..49 

(Procedure on conviction preliminary to consideration of sentence 49 

Wording, date, and signature of sentence . . . . . . 49 

Proceedings of court . . . . . . . . . . . . 49 

General observations on duty of a court-martial in awarding 

sentence . . . . . . . . . . . . . . 49 

Joint offenders .. .. .. .. .. .. .. ..50 

Further observations . . . . . . . . . . . . . . 50 

Further observations ; classification of offences . . . . . . 50 

Repeated offences of individual . . . . . . . . 50 

General prevalence of crime . . . . . . . . . . 50 

Insubordinate language .. .. .. .. .. .. ..51 

Discipline, how best maintained . . . . . . . . 51 

Recommendation to mercy . . . . . . . . . . 51 

(Hi.) Proceedings subsequent to Finding and Sentence of Court-Martial. 

Confirmation of proceedings 

Of regimental court-martial . . . . . . . . . . 52 

Of district court-martial . . . . . . . . . . 52 

Of general court-martial . . . . . . . . . . 52 

Warrant for general court-martial 

In the U. K 52 

In India and elsewhere abroad . . . . . . . . 52 

Delegation as to district court-martial . , . . . . 52 

Power of confirming authority to send back finding and sentence 

for revision . . . . . . . . . . . . . . 52 

Mitigation, remission, and commutation of punishment . . . . 53 

Approval of sentence of death in colony . . . . . 53 

Directions for execution of sentence .. .. .. ,. ..53 

Execution of sentence of penal servitude . , . . . . 53 

,, ,, imprisonment . . . . . . 53 

| ,, ,, ,, detention .. .. .. .. ..54 

Further provisions . . . . . . . . . . . . 54, 

CHAPTEB YI. EVIDENCE. 
Introductory. 

Meaning of " Rules of Evidence " .. .. .. .. ..55 

English rules of evidence primarily applicable to trial by jury . . 55 

Nature of evidence . . . . . . . . . . . . 55 

Diffei'ence between judicial and non-judicial inquiries .. .. 55 

Reasons for excluding certain classes of evidence in judicial inquiry 56 

Evidence in courts -martial to be governed by English law . . 58 

Matters with which rules of evidence are concerned . . . . 56 

(/'.) What must be proved. 

Charge brought must be proved . . . . . . . . . 57 

Substance only of charge need be proved . . . . .. ..57 

(M.L.) f> 2 



XX CONTENTS OF CHAPTERS. 

PAGE 

(ii.) What facts are assumed to be known. 

Judicial notice . . . . . . . . 58 

Matters of which judicial notice will be taken . . . . . . 58 

(Hi.) By ivlrich side proof must be given. 

Burden of proof .. ..58 

Shifting of biirden of proof . . . . . . . . . . 59 

Presumption of intent from unlawful act . . . . . . . . 59 

(iv.) What statements are admissible as Evidence. 

Rules as to admicsibility of evidence . . . . . . . . 59 

Rule of relevancy . . . . . . . . . . . 59 

Rule of best evidence .. .. .. .. .. .. ..59 

Hearsay .. .. .. .. .. 59 

Opinion . . . . . . . . . . . . . . 59 

I. Rule of relevancy .. .. .. . . .. .. ..59 

Character not evidence for prosecution .. .. .. ..59 

Character admissible as evidence for defence .. .. .. 60 

Effect of evidence as to character . . . . . . . . 60 

Evidence of facts tending to show general disposition not admissible 60 
\\ here several offences connected, evidence of one admissible as 

proof of another . . . . . . . . . . . . 60 

Facts showing intention ; knowledge, belief, &c. . . . . . . 61 

Facts showing intention (further illustrations) .. .. .. 61 

Evidence as to motive, preparation, subsequent conduct, or conse- 
quences admissible . . . . . . . . . . 62 

Acts of conspirators . . . . . . . . . . . . 62 

Statements not forming part of conspiracy inadmissible . . . . 62 

Illustrations of evidence admissible on charge of conspiracy . . 62 
Acts and declarations of accused when evidence for him in con- 
spiracy cases . . . . . . . . . . . . . . 63 

II. Rule as to best evidence . . . . . . . . . . 63 

Rule chiefly applicable to documents. . . . . . . . 63 

Primary and secondary evidence . . . . . . . . 63 

Primary evidence of document . . . . . . . . 63 

Attested and unattested documents . . . . . . . . 63 

Distinction between private and public documents .. .. .. 63 

Secondary evidence of private documents, when admissible . . 63 

Secondary evidence of private documents, how given .. ,. 64 

Public documents, what deemed to be . . . . . . ..64 

Primary and secondary evidence of public documents .. .. 64 

Certified copies . . . . . . . . . . . . . . 64 

Provisions of Documentary Evidence Act as to certain documents 65 
Special provisions of Army Act as to documents provable by copies 65 
Rules as to best evidence not applicable to distinction between 

direct and indirect evidence . . . . . . . . 65 

Nature and strength of circumstantial evidence . . . . . . 66 

Illustrations of difference between good and bad circumstantial 

evidence . . . . . . . . . . . . . . 68 

Best evidence does not mean strongest possible assurance . . 67 

Number of witnesses requisite .. .. .. .. ..67 

I II. Rule as to hearsay .. .. .. .. .. ..68 

Form of rule as to hearsay in narrower sense . . . . . . 68 

Statements made in presence of accused not excluded . . . . 68 

Dying declarations . . . . . . . . . . . 68 

Dying declarations, illustrations of rule .. .. .. ..69 

Statements forming part of res gestce . . . . . . . . 6!) 

Statements forming part of res gestce : illustrations of rule .. 69 

Special rule in case of trials for rape and kindred offences. . 70 



CONTENTS OF CHAPTERS. XXI 

PAGE 

Statements as to bodily or mental feeling admissible . . . . 70 

Declaration of deceased person against interest . . . . . . 70 

Statements made in course of business by person since deceased . . 70 

Admissibility of deposition .. . . .. .. .. ..70 

Summary of evidence, how far admissible .. .. .. ..70 

Application of hearsay rule to documentary evidence . . . . 71 

Recitals of public facts, of statements, proclamations, &c. .. .. 71 

Entry in public record made in performance of duty .. .. 71 

Special provisions of Army Act . . . . . . . . 71 

IV. Rule as to opinion .. .. .. .. .. ..71 

Exception in case of experts . . . . . . . . 72 

Medic.-tl experts .. .. .. .. .. .. .. ..72 

Experts in military science . . . . . . . . . . 72 

Experts in handwriting . .. .. .. .. .. ..72 

Rule excluding opinion does not exclude evidence as to belief .. 72 

Opinion as to conduct, how far admissible . . . . . . 72 

Refreshing memory . . . . . . . . . . . . . . 73 

Notes referred to not evidence of themselves . . . . 73 

(v.) Admissions and Confessions. 

Rule as to admissions .. .. .. .. .. .. ..73 

Confession admissible only against person who makes it . . . . 74 

Confession must be voluntary .. .. .. .. .. ..74 

Confession when not deemed voluntary . . . . . . 74 

Confession when deemed voluntary , . . . . . . . 74 

Confession made after removal of impression produced by threat, 

&c. deemed voluntary . . . . . . . . . . . . 74 

Facts discovered through involuntary confession admissible . . 75 

Confession made under promise of secrecy, &c. .. .. .. 75 

Whole of confession must be given .. .. .. .. ..75 

Confession made on oath or in previous proceedings .. .. 75 

(/.) Who may give Evidence. 

General rule as to competency of witnesses . . . . . . 75 

Competency of person charged .. .. .. .. ..75 

Rule as to persons jointly charged .. .. .. .. ..76 

Evidence of accomplices . . . . . . . . . . . . 76 

Competency of wife 76 

Incompetency from idiotcy, &c. . . . . . . . . . . 77 

Peaf and dumb persons not incompetent. . .. .. .. ..77 

Religious belief immaterial as to competency .. .. .. 77 

Competency of member of court to give evidence . . . . 77 

Distinction between competency and credibility . . . , 77 

(vii.) Privilege of Witnesses. 

Person competent not always compellable to give evidence . . . . 77 

Witness not to be compelled to criminate himself . . . . 78 

Rules as to accused giving evidence . . . . . . . . . . 78 

Privilege does not extend to answers showing civil liability ., 79 

When privilege may be waived by witness . . . . . . 79 

Evidence as to affairs of State .. .. .. ..79 

Privilege as to confidential reports and information . . . . 79 

Privilege as to proceedings of court of inquiry .. .. ..79 

Information as to commission of offences . . . . . . . . 79 

Communications during marriage .. .. .. .. ..79 

Professional communications . . . . . . . . . . . . 79 

Doctors and clergymen not privileged .. .. .. ..80 

Questions to be entered on proceedings whether answered or not ... 80 



XX11 CONTENTS OF CHAPTERS. 

PAGE 

(via.} How Evidence is to be given . 

Mode of giving evidence dealt with by rules . . . . . . 80 

Points requiring attention of court 

Examination of witnesses 

Leading questions . . . . . . . . . . . . . 

Test of what ure leading questions . . . . . . . . . . 81 

Examples of fair and unfair questions , . . . . . . . 81 

Eule as to directing attention to particular persons and things. . 82 

Exceptions in case of hostile witness 

Rules as to cross-examination . . . . . . . . . . 82 

Further observations on cross-examination . , . . . . . . 83 

Exclusion of evidence to contradict answers as to questions testing 

veracity 

Cross-examination as to previous statements . . . . . . 83 

Impeaching credit of witnesses . . . . . . . . . . 84 

Eule as to re-examination . . . . . . . . . . . . 84 

Discretion of court as to enforcing rules . . . . . . . . 84 

. CHAPTER VII. OFFENCES PUNISHABLE BY ORDINARY LAW. 

Introductory. 

Liability of soldier to civil as well as'military law , . . . . , 85 

Jurisdiction of military courts over civil offences . . . . . . 85 

Principles on which jurisdiction should be exercised . . . . 85 

Scheme of the chapter . . . . . . . . . . . . 86 

(i.) Punishments. 

Punishments . . . . . . . . . . . . . . . . 86 

Other consequences of convictions . . . . . . . . . . 87 

(ii.) Responsibility for Crime. 

Criminal responsibility .. .. .. .. .. .. 87 

Children . . . . . . . . . . . . . . . . 87 

Insane persons . . . . . . . . . . . . . . . . 88 

Temporary intoxication . . . . . . . . . . . . 88 

Compulsion . . ,, . . . . . . . . . . . . . 88 

Necessity . . . . . . . . . . . . . . . . 88 

Ignorance of law . . . . . . . . . . . . . . 88 

Ignorance of fact . . . . . . . . . . . . . . 89 

Parties to offence . . . . . . . . . . . . . . 89 

Innocent agent .. .. .. .. .. . .. 89 

Assisting in offence . . . . . . . . . . . . . . 89 

Common intent . . . . . . . . . . . . . . 89 

Instigating an offence . . . . . . . . . . . . . . 89 

Knowledge of intended offence . . . . . . . , . . 90 

Accessory before the fact . . , . . . . . . . . . 90 

Accessory after the fact . . . . . . . . . . . . 90 

Attempt to commit offence . . . . . . . . . . . . 90 

Intention . . . . . . . . . , . . . , . 90 

Consent . , . . . t . . . . . . , . , . . . 91 

Accident . . . . . . . . . . . . . . . . 91 

Negligence . . . . . . . . . . . . . . . . 92: 

(Hi.) Responsibility for use of Force. 

Use of force . . . . . . . . . . . . . . . . 92 

Amount of force to be used . . . . . . . . . . . . 92 

Cases in which use of force is justifiable .. .. .. .. 92 



CONTENTS OF CHAPTERS. XX111 

PAGB 

(/u.) Responsibility for Acts of Omission. 

Acts of omission . . . . . . . . . . . . . . 

Omission lo perform duty . . . . . . . . . , . . 94 

(r.) Assaults and Sexual Offences. 

Assault . . . . . . . . . . . . . . . . . . 94 

Aggravated assaults . . . . . . . . . . . . . . 95 

Indecent assaults . . . . . . . . . . . . . . 95 

Rape . . . . . . . . . . . . , . . . . . 95 

Carnal knowledge of a child . . . . . . . . . . . . 95 

Procuring girl to become a prostitute, &c. . . . . . . . . 96 

Abduction , . . . . . . . , . . . . . . . 96 

Procuring abortion . , . . . . . . . . . . . . 97 

Sodomy . . . . . . . . . . . . . . . . . . 97 

Acts of indecency . . . . . . . . . . . . . . 97 

Disorderly houses . . . . . . . . . . . . . . 97 

Dangerous act . . . . . . , . . . . . . . . . 97 

(yi.) Offences against Children and Servants. 

Illtreatment of children . . . . . . . . . . , . 97 

Abandonment of children . . . . . . . . . . . . 97 

Concealment of birth . . . . . . . . . . . . . , 97 

Neglect of servants . . . . . . , . . , . . . . 98 

(tw.) Homicide. 

Homicide . . . . . . . . . . . . . . . . 98 

Murder . . . . . . . . . . . . . . . . . . 98 

Letters threatening to murder . . . . . . . . . . 99 

Manslaughter . . . . . . . . . . . . . . . . 99 

Test of sufficiency of provocation . . . . . . . . . , 99 

Attempt to murder . . . . . . . . . . , . . , 99 

Conspiracy to murder . . . . . . . . . . . . . . 100 

(viii.) Theft and Cognate Offences. 

rpv-pfj. inn 

_L I I ' 1 I , * * > .LV^V 

Possession of lost property and possession by servants . . . . 101 

Stealing lost property .. .. .. .. .. .. ..101 

Embezzlement . . . . . . . . . . . . . . . . 101 

Conviction for theft on charge of embezzlement and vice versa . . 102 

Embezzlement by persons in public service . . . . . , 102 

Obtaining goods by false pretences . . . . . . . . . . 102 

Conviction of theft on charge of obtaining by false pretences 103 

Robbery . . . , . . . . . . . . ... . . 103 

Extortion . . . . . . . . . . . . . . . . 103 

Breaking and entering. Burglary . . . . . . . . . . 1C3 

Receiving stolen goods, &c. . . . . . . . . . . . . 104 

Cheating, &c. . . . . . , . . , . . . . . . . 104 

(ix.) Foryery ; Perjury; Coinage Offences ; Personation. 

Forgery . . . . . . . . . . . . . . . . . 105 



Uttering forged documents 

Possession of torged notes, &c. 

Perjury .. 

Coinage offences . . . . 

Uttering 

Clipping 

Personation . . . . 



105 
106 
106 
106 
106 
107 
107 



CONTENTS OF CHAPTERS. 

PAGE 

(r ) Malicious Injury to Property. 

107 

Malicious injury to property "" 

iu/ 

Arson .... , ft7 

Other examples of malicious injury 

(xi.) Miscellaneous Offences. 

Bigamy 

Treason " , ' ' - t i 

ji.-irur at large whilst sentenced to penal servitude . . . . 

108 

J^Hl ape f, . . -i fto 

Offences relating to the obstruction of justice iu< 

TABLE OF OFFENCES AND PUNISHMENTS . . 109 

CHAPTER VIII. POWEBS OF COUBTS OF LAW IN RELATION TO 

COUETS-MABTIAL AND OFFICEES. 

Introductory. 
Courts-martial and officers amenable for acts done without or in 

excess of jurisdiction 

Exceptions in case of injuries affecting only military position . . 119 
Meaning of acting without jurisdiction 

Illustrations of acting without jurisdiction .. .. ... 119 

Further illustrations .. .. .. ..119 

Result of acting without jurisdiction . . . . . . . . 120 

Excess of jurisdiction .. .. .. .. .. 120 

Modes of interposition of courts of law . . . . . . . . 120 

(i.) Writ of Prohibition. 

Definition of the writ of prohibition . . . . . . . . 120 

When prohibition will issue .. .. .. .. .. .. 120 

Grant v. Gould, 1792 121 

Foe's case, 1832 121 

McCarthy's case, 1866 121 

No example of issue of prohibition to a court-martial . . . . 122 

To officer . . . . . . . . . . . . . . . . 122 

.Disobedience of prohibition . . . . . . . . . . . . 122 

(n.) Writ of Certiorari. 

Definition of the writ of certiorari .. .. .. .. .. 122 

When certiorari will issue .. .. .. .. .. .. 122 

IMani-ergtis case, 1858 .. .. .. .. .. .. .. 122 

His truil by court-martial .. .. .. .. .. .. 122 

Refusal of application for certiorari . . . . . . . . . . 123 

Robrtx's case, 1879 . 123 

No distinction between his case and Mansergh's case .. .. 124 

(Hi.) Writ of Habeas Corpus. 

\Vi it of Habeas Corpvs, the remedy against illegal custody . . 124 

vV li en habeas corpus will issue .. .. .. .. .. 124 

What is a sufficient return to writ .. .. .. .. .. 124 

General disinclination of courts to interfere with matters of 

discipline .. .. .. .. .. .. .. .. 124 

Slake' s case, 1814 125 

Hide nixi granted .. .. .. .. .. .. .. 125 

Rule discharged .. .. .. .. .. .. 125 

Sufficiency of return that prisoner is in custody under sentence of 

on ip.-f,. nt court 126 



CONTENTS OF CHAPTKRS. XXV 

PAGB 

Suddis' case, 1801 . . ..126 

Jone-f v. Danvrrs, 1839 .. .. .. .. .. .. 126 

Instances of discharge obtained by writ .. .. .. ., 126 

Douglas' case, 1842 . . . . . . . . . . . . . . 126 

Porretf's case, 1844 . 126 

Aliens case, I860 127 

Observations of Chief Justice Cockburn .. .. .. .. 127 

Military custody not now illegal by leason merely of informality, &c. 127 

Application for attachment against officer failing to make return. . 127 

Canadian case cited in Simmons on Courts-martial . . . . 127 

(/.) Actions for Damages. 

Actions against members of courts-martial and individual officers 128 

Illegal sentence by court-martial .. .. .. .. .. 128 

Frtie v. Ogle, 1743 128 

Damages recovered by Lieut. Frye .. .. .. .. .. 128 

Sequel of this case . . . . . . . . . . . . 129 

Vindication by the Chief Justice of his authority . . . . . . 129 

Observations of Lawrence, J. .. .. .. .. .. .. 129 

Illegal imprisonment by president of court-martial . . . . 129 

Illegal command by superior officer .. .. .. .. 129 

Warden v. Bai/ey, 1810 130 

Non-suit set aside, and new trial granted .. .. .. .. 130 

Opinion of the Exchequer Chamber in Dawkins v. Holfeby .. 130 

Illeg.-il execution of sentence . . . . . . . . . . . . 130 

Exces-ive corporal punishment . . . . . . . . . . ] 30 

Trial by court-martial of civilian .. .. . .. .. 131 

Further instances of actions by civilians . . . . . . . . 131 

Sana fides does not excuse an illegal act . . . . . . . . 132 

Immaterial that cause of action arose abroad . . . . ... 132 

Moxtyn v. Fabrigas, 1774. . .. .. .. .. .. .. 132 

Members of courts-martial not liable for mere errors of judgment 132 

Abuse of military authority .. .. .. .. .. . 132 

Wall v. Macnamara ., .. ., .. .. .. .. 133 

Where jurisdiction exists, action only lies if malice can be inferred 133 
Swinton v. Molloy .. .. .. .. .. .. ..134 

Custom of the service may be a justification . . . . . . 134 

Grant v. Shard. . . . . . . . . . . . . . . . 134 

Civilians protected against abuse of military authority .. > 134 
Acts complained of as done maliciously and without probable 

cause ., .. .. ,. .. .. .. .. 134 

Suttoii v. Johnstone, 1786 . . . . . . . . . . . . 135 

Questions raised in this case . . . . . . . . . . . . 135 

Result of trials, and decision of Court of Exchequer .. . . 135 

Reversal of decision of Court of Exchequer by Exchequer 

Chamber . . . . . . . . . . . . . . . . 136 

Probably no action lies for an act within limits of military authority 

even where done maliciously and without probable cause . . 137 

Actions for libel . . . . * . . . . . . . . . . 137 

Dati'kins v. Paulet .. . . .. .. .. .. .. 138 

Jekyll v.Moore 138 

Report of court of inquiry privileged . . . . . . . . 138 

Question to be determined in these cases that of privilege . . 138 

Malice held to take away privilege Dickson v. Wilton, sed qumre 138 
Dickson\. Combermere .. .. .. .. ,. ,.139 

Publication of sentence of court-martial not a libel .. ,. 139 

Complaint to proper authorities not a libel . . . . . . . . 139 

R. v. Bauley Fair-man v. Ives .. .. .. .. .. 140 

Sarwood v. Green .. .. .. .. .. .. .. 140 

Privilege of witnesses . . . . . . . . . . . . 1 40 



XXvi CONTENTS OF CHAPTERS. 

PAGE 

Actions for negligence .. .. .. ..140 

Weavers. Ward .. .. .. 140 

Case of H.H.S. Volcano 1*0 

Action by foreigner 

Non-liability for hostile acts done by authority of Government . . 141 

(.) Liability to criminal proceedings. 

Liability to criminal proceedings ., . . . . . . . . 141 

Case of 'Governor Wall, 1802 

Circumstances of this case . . . . . . . . . 

Direction of the Chief Baron to the jury .. .. .. .. 142 

Case of Ensign Maxwell, 1807 

Ruling of the Lord Justice Clerk as to orders given . . . . 142 

S.v.Thomas 142 

How far specific commands can excuse subordinate . . . . 143 

Criminal liability for offences committed out of the realm . . 143 

Case of Sir Thomas Picton, 1806 143 

Execution of sentences, &c. . . . . . . . . 143 

(IH.) Protection of persons acting under the Army Act and other Acts. 

Protection of persons acting under Statute . . . . . . . . 144 

Application of chapter . . . . . . . . . . = . 145 

CHAPTEE IX. HISTOEY OF THE MILITABY FOEOES OF THE CBOWN. 

Object of chapter 

Two periods in history of forces . . . . . . . . . . 146 

First Period. General and Feudal Levies. 

General liability to service in early times . . . . . . - . 146 

Double aspect of this service . . . . . . . . . . . . 146 

Organisation of general levy .. .. .. .. .. .. 147 

Lieutenants in counties . . . . . . . . . . . . 147 

Right of purvevance . . . . . . . . . . . . . . 147 

Thegns .. " 147 

Feudal levy . . . . . . . . . . . . . . . . 148 

Composition in lieu of personal service . . . . . . . . 148 

In case of feudal levy . . . . . . . . . . . . . . 149 

Scutage or Escuage . . . . . . . . . . . . . . 149 

In case of general levy, quota and contributions to expenses . . 149 

Mode of calling out feudal levy . . . . . . . . . . 149 

Questions as to legality of commissions for purpose of foreign 

service . . . . . . . . . . . . . . . . 150 

Resistance of Parliament . . . . . . . . . . . . 150 

Impressment during Wars of the Roses and in the time of Tudors 150 

Repeal of Armour Acts in reign of James I . . . . . . . 151 

Commissions of musters and trained bands . . . . . . . . 151 

Commissions of musters, a grievance under Charles I . . . . 152 

Impressment declared illegal by Long Parliament .. . . . . 152 

Trained bands or militia under Charles I . . . . . . . . 152 

Troops raised irregularly during Civil War . . , . . . 152 

Other classes of soldiers . . . . . . . . . . . . 152 

Crown grantees .. .. .. .. .. .. .. .. 152 

Criminals and debtors .. .. .. .. .. .. .. 152 

Mercenaries . . . . . . . . . . . . . . . . 153 

Raising of mercenaries, by indentures or contracts . . . . . . 153 

Enlistment to serve the Crown .. .. .. .. .. 153 

Enforcement of obligation to serve . . . . . . . . . . 153 

In case of mercenaries .. .. ,. .. . . .. .. 154 

Punishment of desertion after Revolution .. 154 



CONTENTS OF CHAPTERS. XXV11 

PAGE 

Second Period. Standing Armi/, 

Changes in military system cm the Eestoration in 1660 . . , . 154 
No standing army before Restoration . . . . . . , . 151 

Maintenance of standing army after Restoration . . . . . . 155 

Maintenance of standing army in time of peace, without consent of 

Parliament, declared illegal by Bill of Eights . . . . 155 

Control of Parliament since the Bill of Rights . . . . . . 155 

As respects number of troops . . . . . . . . . . . . 156 

liaising, Government, and Payment of Army since 1660. 

Raising, &.C., of army since 1660 .. .. .. ,. .. 156 

Compulsory service replaced by system of bounties . . . . 156 

Competition for recruits between army and militia in 18th century 156 

Contracts to raise troops subsequently to the Revolution in 1688 . . 157 

System of recruiting by beating orders . . . . , . . , 157 

Mode of defraying expenses of recruiting .. .. .. .. 157 

Pecuniary interest of officers in system . . . . . . . . 157 

Abolition of system, 1783 . . . . . . . . . . . . 157 

Term of service . . . . . . . . . . . . . . . . 158 

Army Service Act, 1847 158 

Army Enlistment Act, 1867 .. .. .. .. .. .. 158 

Army Enlistment Act, 1870, and Reserves . . . . . . . . 158 

Government of army since 1660 .. .. .. .. .. 158 

Finance of the army . . . . . . . . . . . . . . 159 

Grant of money by Parliament , . . . . . . . 159 

Issue of pay .. .. .. .. .. .. .. .. 159 

Clothing .. .. .. .. .. .. .159 

Military stores . . . . . . . . . . . . . . . . 159 

Barracks .. .. .. .. .. .. ,. .. 159 

Provisions and transport . . . . . . . . . . 159 

Army extraordinaries . . . . . . . . . . . . . . 159 

Secretary at War . . . . . . . . . . . . . . 159 

I Commander-in-Chief and Judge Advocate-General . . . . 160 

Secretary of State for War .. .. .. .. .. ..160 

| Army Council . . . . . . . . . . . . . . . . 161 

Audit of military accounts . . . . , . . . . . . . 162 

Militia. 

Periods of history of militia . . . . . . . . . . . . 162 

General and local militia . . . . . . . . , . . . 162 

First period. Organisation of militia on Restoration in 1680 . . 162 

Acts passed 1662-1 745 163 

Second period. Re-organisation of militia after rebellion of 1745 163 

Consolidation of Militia Acts . . . . . . . . . . . . 164 

Third period, 1815-1852 164 

Fourth period. Re-organisation of the militia in 1852 . . . . 165 

Militia Act, 1875 165 

Raising of the Militia. Act of 1662 165 

Alteration in mode of raising men in 1757 .. .. .. .. 165 

Fine for not raising quota . . . . . . . . . . . . 166 

Volunteers recognised by Act of 1758 . . . . = . . . 166 

Changes in system during nineteenth century . . , , . . 166 

Numbers of the militia .. .. .. ., .. .. 167 

Quotas under various Acts since 1757 . . . . . . 167 

Numbers under Act of 1871 . . . . . . , . . . . . 167 

Conditions of service . . . . . . . . . . . . . . 167 

Annual training . . . . . . . . . . . . . . 167 

Power to embody . . . . . . . . . . . . . . 167 

Militia liable to serve only in United Kingdom . . . . . . 168 



CONTENTS OF CHAPTERS. 

PAOB 

Term of service .. 

Command of militia. Act of 1661 .. 

Powers of Lord Lieutenants under Act of 1662 
Powers of Crown . . . . . . 

Changes in 1852 and subsequently .. 

Powers of Lord Lieutenant re-vested in Crown by Act of 1871 .. 

Status of militia officers .. .. .. 170 

Provisions of Act o 1 1881 .. 

Militia not subject to Mutiny Act at all till 1757 .. 
Militia brought more under military law since 1852 .. 

Payment of expenses of militia .... 

Act of 1757 !7l 

Storaue of arms, &c. a local charge till 1871 . . . . 171 

Billeting .. .. .. 172 

Belief of families of militiamen 

Euiistinent of militiamen into the army .. .. ..172 

Act of 1795 

Acts of 1852 and 1854 172 

Act of 1875 ..172 

Acts for raising forces to meet apprehended French invasion, 

1796-1812 172 

Acts establishing local militia .. .. .. .. 173 

Account of local militia 

Training, command, and embodiment .. .. .. .. 173 

Not raised since 1815 .. 223 

Militia of S"Otland before and under Act of 1802 .. . . . . 174 

Militia of Ireland. First Act, 1715 174 

Amending Acts . . . . . . . . . . . . . . 174 

Acts after Union .. .. .. .. .. .. .. 175 

Yeomanry and Volunteers. 

Early volunteer corps . . . . . , . . . . . . . . 175 

Acts of 17 94 and 1802 175 

Act of 1804 375 

Position of Yeomanry up to 1901 .. .. .. .. .. 176 

Present position of Yeomanry .. .. .. .. .. 176 

Revival of volunteers in 1859. . . . . . . . . . . . 177 

Billeting. 

Billeting 177 

Billeting in early times .. .. .. .. .. .. 177 

Abuse of the practice, and declaration of illegality thereof by 

Petition of Right . . .. .. .. . . .. .. 177 

Billeting under Chnrles II . . . . . . . . . . 177 

Billeting under James II .. .. .. .. .. .. 177 

Billeting first authorised by Parliament in Mutiny Act, 1689 . . 178 

Billeting under Army Act .. .. .. .. .. .. 178 

Billeting illegal except so far as expressly authorised .. .. 178 

Billeting in private houses illegal .. .. .. .. .. 178 

Billeting in Scotland.. .. .. .. .. .. .. 178 

Billeting in Ireland .. .. .. .. ,. .. .. 179 

Necessity of billeting while barrack accommodation insufficient . . 179 

Checks on abuse of practice .. .. .. .. .. .. 17-> 

Routes authority for billeting .. .. .. .. .. 179 

Billeting the militia .. .. .. .. .. .. .. 180 

Impressment of Carnages. 

Prerogative right of purveyance .. .. .. .. .. 180 

Impressment under the Mutiny Act.. .. .. .. ..180 

Scotland and Ireland . . 181 



CONTENTS OF CHAPTERS. XXIX 

PAOK 

Orders authorising impressment .. .. .. .. .. 181 

Impressment of carriages for the militia .. ,. .. .. 181 

Exemptions from tolls. . .. .. .. .. .4 .. 182 

Conveyance of Troops by Railway. 

Conveyance of troops by railway .. .. .. .. .. 182 

Power to take possession of railways in case of emergency . . 182 

CHAPTER X. ENLISTMENT. 

Object of chapter .. .. .. .. .. .. .. 184 

Term of original enlistment .. .. .. .. .. .. 184 

Change of conditions of service .. .. .. .. .. 184 

Re-engagement .. .. .. .. .. .. .. 184 

Continuance in service after 21 yrars .. .. 181 

Regulations of Secretary of State as to re-engagement, &c. . . 184 

Regulations a* to non-commissioned officers . . . . 185 

Power in certain circumstances to detain soldier after expiration 

of his term . . . . . . . . . . . . . . 185 

Forfeiture of service under former Acts . . . . . . . . 185 

Provisions of Army Act as to forfeiture of service . . . . . . 185 

Effect of provisions . . . . . . . . . . . . 186 

Enlistment for general service and appointment to corps . . . . 186 

Power to transfer under former Acts . . .. ,. .. 186 

Provisions of Army Act as to transfer . . . . . . . . 186 

By consent . . . . . . . , . . . . . . . . 186 

From regiment ordered abroad from home, or vice versa . . . . 186 

As a punishmtnt .. .. .. .. .. .. .. 186 

Conditions of enlistment not varied without consent of soldier . . 187 

Application of Army Act to soldiers enlisted under former Acts. . 187 

Further observations on application of Army Act . . . . . . 187 

Attestation before civil authority required since 1694 .. .. 187 

Provisions of Army Act as to attestation .. .. .. .. 188 

Evidence of attestation .. .. .. .. .. .. 188 

Acceptance of pay renders a soldier subject to military law, 

though not attested . . . . . . . . . . . . 189 

Enlistment of 

Apprentices .. .. .. .. .. .. .. ..189 

Minors .. .. .. .. .. .. .. . . 189 

Aliens. Aft of Settlement .. .. .. .. .. 189 

Limited power to enlist aliens .. .. .. .. .. 189 

Discharge. Power of Crown to discharge soldiers .. ,. 190 

Certificate of discharge .. .. .. .. .. .. 190 

Conveyance home of soldiers on discharge . . . . . . . . 190 

Disposal of lunatic soldiers . . . . . . . . . . . . 190 

Transfer to reserve .. .. .. .. .. .. -. 191 

Offences in relation to enlistment .. .. .. .. .. 191 

CHAPTER XI. CONSTITUTION OF THE MILITARY FORCES OF THE 

CROWN. 

Introductory. 

Military forces consist of Regular forces and Auxiliary forces . . 192 

Observations on Indian forces . . . . . . . . . . 192 

Observations on Colonial forces . . , . . . . . . . 192 

British Forces. 

British forces .. .. .. .. .. .. . . .. 193 

Con>titution of " Army " in common acceptation of term .. 193 

Departmental corps . . . . , . . . . . . . . . 194 



xxx CONTENTS OF CHAPTERS. 

PAGE 

Other departments connected with the Army . . . . . . 194 

Unit of army for enlistment and service is the corps 

Unit for other purposes not necessarily the same .. . . . . 195 

Explanation of term " commanding officer " .. .. L95 

Reserves (1) Army Eeserve ; (2) Militia Reserve . . . . 195 

.Army Reserve divided into two classes .. .. .. .. 195 

First class of Army Eeserve . . . . . . . . . ^95 

Section A of first class 
Section B of first class 
Entry into Section B .. 
Illustrations of Sections A and B . . 

Section D .. 196 

Second class of Army Reserve .. .. .. .. .. 197 

Entry by transfer or enlistment . . . . . . . . . . 197 

Annual training of Army .Reserve men ,. .. .. .. 197 

Calling out in aid of civil power . . . . . . . . . . 197 

Liability to permanent service .. .. .. .. .. 197 

Extent of liability . . . . . . . . . . . . 1 98 

Re-entry on Army service . . . . . . . . . . . . 198 

Militia Eeserve. . .. .. .. .. .. .. .. 399 

Annual training .. .. .. .. .. .. .. 199 

Liability to permanent service .. .. .. .. .. 199 

Other provisions as to Militia Reserve men . . . . . . 199 

General orders and regulations for reserve forces and general 

result . . . . . . . . . . . . . . . . 199 

Marines . . . . . . . . . . . . . . . . . 199 

Regiment of Royal Marines raised in 1755 . . . . . . . . 199 

Term of service, &c. . . . . . . . . . . . . . . 200 

Transfer of Royal Marines to army . . . . . . . . . . 200 

Expenses of Royal Marines . . . , . . . . , . . . 200 



Auxiliary Forces. 

Connection between auxiliary and regular forces .. . , .. 200 

Association of militia in corps with regulars . . . . . . 200 

General and local militia . . . . . . . . . . . . 201 

Provisions of Militia Act, 1S82. Lieutenants of counties and 

deputy-lieutenants . . . . . . . . . . . . 201 

Government of militia . . . . . . . . . . . . 201 

Number and voluntary enlistment of men . . . . . . . . 201 

Officers and staff ' 202 

Command .. .. .. .. .. .. .. .. 202 

Permanent staff of militia . . . . . . . . . . . 202 

Training of recruits .. .. .. .. .. .. .. 202 

Annual training and exercise. . .. .. .. .. ,. 202 

Embodiment .. .. .. .. .. .. .. .. 203 

Liability to service . . . . . . . . . . . . . . 203 

Disembodiment . . . . . . . . . . . . . . 203 

Application of military law to militia . . . . . . . , 203 

Enlistment into regular forces . . . . . . . . . . 203 

Fraudulent enlistment by militiaman . . . . . . . . 204 

Desertion and absence without leave . . . . . . . . 204 

Discharge 204 

Exemptions .. 204 

Exceptional position of certain localities .. ,. .. .. 204 

Imperial Yeomanry .. .. ., .. .. .. .. 204 

Points of difference between Yeomanry and Militia . . . . 204 

Officers of yeomanry .. . s ..' .. 205 

Volunteers of Great Britain .. .. .. .. 205 



CONTENTS OF CHAPTERS. XXXI 

PAGE 

Numbers and corps of volunteers 

Expense of volunteers . . . . . . . . . . 201 

Liability of volunteers to service 
Regulations of Secretary of State 

Application of military law to volunteers . . . . . . . . 207 

Officers of volunteers . . . . 207 

Ireland 207 

Permanent staff of volunteers . . . . . 207 

Trial \>y court-martial . . . . . . 207 

Command .. .. .. ..207 

CHAPTER XII. RELATION OF OFFICERS AND SOLDIERS TO CIVIL LIFE. 

How far in England a soldier is divested of civil rights and 

liabilities . . . . . . . 208 

Illustrations. Inability to change domicile or settlement . . 208 

Special provision as to maintenance of wife and family . . 

Restrictions on creditors of soldier . . . . . . . 208 

Wills of officers and soldiers . . . . . . . 209 

Exemption of soldier servants from licence duty 

Privileges of soldiers in relation to letters . . . . . . . . 209 

Exemptions from local rates and tolls . . . . 201 

Exemption from service on juries, &c. .. .. .. .. 209 

Right'to vote at Parliamentary election, and to sit in House of 

Commons .. .. .. .. 210 

Military Savings Banks .. .. .. .. 210 

CHAPTER XIII. SUMMARY OF THE LAW OF RIOT AND INSURRECTION. 

Object of chapter .. .. .. 21. 

Definition of unlawful assembly .. -. 211 

Example of what is, and what is not, an unlawful assembly . . 211 

Definition of " riot " .. .. 212 

Examples of riot .. .. ..21; 

Definition of " insurrection " . . . . . . . . . . 212 

Examples of insurrection .. .. .. .. 212 

Case of R. v. Frost ,. .. 212 

Distinction between unlawful assembly, riot, and insurrection . . 213 

Distinction in punisbment . . . . . . . . . . . 213 

Additional crimes usually incident to riots and insurrections . . 213 

Suppression of unlawful assemblies, riots, and insurrections . . 214 

Degree of force to be used in suppression of unlawful assemblies 214 

Suppression of riots . . . . . . = . . . . . . . 214 

Extract from charge of Chief Justice Tindal . . . . . . 214 

Use of deadly weapons by those engaged in 

Dispersing riots .. .. ,. .. .. 215 

Apprehension of rioters . . . . . . . . 215 

Suppression of insurrections . . . . . . . . . 216 

Account of Riot Act . . . . . . . . . . . . . . 216 

Effect of proclamation under Act . . . . . . . . . . 216 

Form of proclamation .. .. .. 216 

Effect of remaining for an hour after proclamation . . . . 216 

A riot may be dispersed before the proclamation in the Riot Act 

is read . . . . . . . . . . . . . . . . 217 

Further observations . . . . . . . . . . 217 

Circumstances which may guide authorities in use of force . . 217 

Further illustrations . . . . . . . . . . . . 218 

In case of insurrection . . . . . . . . . . . . 218 

Summary of law as to unlawful assemblies, riots, and insur- 
rections .. .. .. .. . . .. .. . . 218 



XXX11 CONTENTS OF CHAPTERS. 

PAGB 

Summary of law as to force to be used 

In case of unlawful assembly .. .. .. .. .. 218 

In case of riot . . . . . . . . . . . , . . 219 

In case of insurrection .. .. .. .. .. .. 219 

Application of preceding observations to troops aiding civil power 219 

J)ivir<ioii of responsibility between magistrates and military officer 219 

Opinion of Sir Charles Napier .. .* .. .. 220 

Note. Extract from report of Committee on feat her stone Riot. 

OHAPTEB XIV. THE LAWS AND CUSTOMS OF WAS ON LAND. 

Note . . . . . . . . . . . . . . . . . . 222 

Geneva Convention, 1864 .. .. .. .. .. .. 223 

1 eclai ation of St. Peter-burg . . . . . . . . . . 226 

Begulations annexed to the Hague Convention . . . . . . 228 

Geneva Convention, 1906 . . . . . . 244 



[The Alterations made in the Army Act and in the Rules of Procedure 
since 1899, as well as in the edition of the Manual issued in 
that year, are denoted by black lines in the margin.'] 



CHAPTER I. 



INTRODUCTORY. 

1. The object of the present work is to assist officers in acquiring Object of 
information in respect of those branches of law with which they work - 
have occasion to deal in the exercise of their military duties. 

2. Officers, as such, are concerned with the following laws : Description 

1. Military Law. wiST4wch 

. 2. The Law Relating to Riot and Insurrection. officers have 

I 3. The Laws and Customs of War. 

3. Military law is the law which governs the soldier in peace Description 
and in war, at home and abroad. At all times and in all places, ' lf niili tary 
the conduct of officers and soldiers as such is regulated by military 

law. Military law is contained in the Army Act (a), supplemented 
by the Rules of Procedure made under its authority, and by the 
King's Regulations, and by Army Orders. The Army Act, which 
now fills the place of the Mutiny Act and Articles of War, is 
brought into operation annually by a separate statute. The Army 
.Act is part of the Statute Law of England, and, with the consider- 
able difference that it is administered by military courts and not by 
civil judges, is construed in the same manner and carried into effect 
under the same conditions as to evidence and otherwise, as the 
ordinary criminal law of England (6). It must be recollected 
throughout this work that the statute law referred to is the law 
as enacted by the Parliament of the United Kingdom, while the 
"common law" is the law which has not been "created or declared 

Iby express enactment, but developed by the Courts from principles 
founded in the ' custom of the realm,' or deemed so to be " (c). 

4. There is not in England, as in many foreign countries, a Descrfptioi. 
special law defining the relations between the military and civil rfotTamf 
power in cases of riot and insurrection. Troops when called out to insurrec- 
assist the civil power in these cases are under military law as tlon- 
soldiers, but they are also as citizens subject to the ordinary civil 

law of England to the same extent as if they were not soldiers. 
Their military character is superimposed on their civil character, 
and does not obliterate it (d). The rioters or insurgents are wholly 
under the ordinary civil law, and are in no respect subject to 
military law, or to the " customs of war." Troops employed against 
armed rioters are, it is true, rendered by the Army Act (e) 
subject to military law as if they were on active service, and the 
rioters were an enemy ; but this enactment relates only to the 
government of the troops. The rioters are an enemy only while 

(a) 44 & 45 Viet., c. 58. This Act repealed and re-enacted with some amendment 
the Army Discipline and Regulation Act, 1879, which had consolidated in one statute 
the Mutiny Act and Articles of War. The amendments made by the annual Acts 
from 1882 down to 1907 are incorporated with it. 

(b) See Army Act, ss. 127, 128, and Rule 73 (B). 

|(c) Sir F. Pollock, in Encycl. of English Law, vol. III., p. 141. 
(d) See ch. XII, para! 1 
(e) Army Act, ss. 17(5 5^ and (7), and 190 (20). 



INTRODUCTORY. 



Ch. I. 



Description 
of laws and 
customs of 
war. 



Their scope 
and object. 



Reasons for 
adopting 
term "laws 
and customs 
of war." 



actually resisting, and when force ceases to be used, the rioters, 
whether prisoners or otherwise, must be tried or otherwise dealt 
with according to civil law. The law, then, of riot and insurrec- 
tion is not necessarily part of the military education of an officer, 
except in so far as some knowledge of it is useful as a guide for 
his own conduct, when required by his military obligations to 
assist the civil power. 

5. The laws and customs of war have effect only in the case of 
war. A commander of troops in time of war, and in occupation of 
a foreign country, or any part thereof, acts in two absolutely distinct 
capacities. First, he governs his troops by military law only ; 
secondly, he stands temporarily in the position of governor of the 
country or part of the country which he occupies. In this latter 
capacity he imposes sxich laws on the inhabitants as he thinks 
expedient for securing, on the one hand, the safety of his army, and, 
on the other, the good government of the district which, by 
reason of his occupation, is for the time being deprived of its 
ordinary rulers. 

6. The law thus administered by an occupying general to the 
inhabitants has been rightly defined as the will of the conqueror, 
in the sense that the legality or illegality of the laws he imposes 
cannot be determined by any human court, and that no appeal to a 
court of law lies from his judgment ; on the other hand, certain 
rules, depending in part on the practice of civilised nations and in 
part on express written agreement between them, have been estab- 
lished, to which officers are bound to conform in the administration 
of the territory which they occupy, and those rules are called the 
laws and customs of war. These laws and customs of war also lay 
down certain regulations (which are binding between belligerents 
partly by virtue of international custom and partly in virtue of I 
written agreements) as to the mode of conducting warfare and| 
the necessary intercourse between combatant forces. 

7. The expression "laws and customs of war" has now been, 
adopted instead of the expression" customs of war" which was! 
formerly used in this manual, but gives a misleading impression! 
of the character of the rules in question at the present day. It is 
no doubt true that a law, to the mind of an Englishman, conveys 
the idea of a defined and rigid rule, which must be obeyed in all 
circumstances and at all risks, and the infraction of which involves 
a crime punishable by a legally constituted tribunal. But although 
the " laws and customs of war " consist of rules the enforcement of 
which must vary considerably, according to circumstances, and 
must, in the case of a military occupation of territory, be sub- 
ordinate to the safety of the occupying army, the greater bulk 
of the rules in question have, within the last forty years, been 
reduced into definite shape and expressed in written agreements, 
to which most civilised powers have become parties. Some, however 
of these rules are still only customs, preserved by military tradition 
and in the works of international jurists. 

To indicate, therefore, the mixed character of these rules, as 
being in part definite rules based on international agreement and 
in part rules not precisely defined and resting only on international 
practice, the expression "laws and customs of war" is here 
used (a). 



(u) These laws and customs of war are quite distinct from the "custom of war," 
re<Vrred to in the old Mutiny Act and Articles of War, in which the expression 
meant the custom of the service. 



Laws and Customs. 3 

8. Such being the laws and customs which this book professes Ch. I. 
to explain, it may be well to state shortly how it deals with these 
several subject matters. me'nTof 6 " 

contents of 
book. 

9. This introductory chapter is followed by a chapter giving a chapters I, 
short history of military law from the time of the Conquest down L 

to the passing of the Army Act. It is hoped thus to show clearly 
the principles of English law applicable to the government of the 
army, and the steps by which the necessity for a statutory power 
to maintain discipline in the army in time of peace led gradually 
to the substitution in time of war of Articles of War, issued under 
the authority of the Mutiny Act, for Articles of War issued under 
the prerogative power of the Crown. 

10. The third, fourth, and fifth chapters are occupied with an chapters 
explanation of the disciplinary provisions of the Army Act, and of m > IV - v 
the procedure by which these provisions are enforced. 

11. Military courts follow the law as to the admission and Chapters 
rejection of evidence which is in force in civil courts in England. VI> VI) 
The sixth chapter, therefore, contains a summary of the law of 
evidence as administered in ordinary criminal trials in England. 

The seventh chapter gives a summary of the English criminal law 
so far as it is applicable to members of the army. This chapter is 
necessary, inasmuch as most ordinary civil crimes, when committed 
by persons subject to military law, are cognisable by military 
courts at all times, and all of them are so cognisable when com- 
mitted on active service, or out of His Majesty's dominions, or in 
parts of His Majesty's dominions out of the United Kingdom, and 
at a distance from any competent criminal court. 

12. Military courts and individual officers are, in respect of acts Ohapte* 
which are illegal or in excess of their jurisdiction, subject to the VI11 - 
control of the superior civil courts. The eighth chapter is framed 

with a view of indicating to officers the extent of jurisdiction which 
they are entitled to exercise, either as members of courts-martial 
or individually, and the circumstances and mode in which their acts 
may be called in question. It is intituled " Powers of Courts of 
Law in relation to Courts- martial and Officers." 

13. Parts II and III of the Army Act are concerned with Chapters 
" Regulation " in contradistinction to " Discipline," which forms IX> Xi X1 - 
the subject of Part I. These two parts the one, Part II, relating 

to Enlistment, the other, Part III, relating to Billeting and Im- 
pressment of carriages are dealt with in the ninth, tenth, and 
eleventh chapters ; and occasion is taken to give there a sketch of 
the history and constitution of the Forces, with the view of 
assisting officers desirous of studying the subject. 

14. Officers and soldiers have certain privileges in relation to the Chapters 
mode of making their wills, exemption from tolls and serving on x *^ xm - 
juries, and otherwise. These are explained in the twelfth chapter. 

The scope and object of the thirteenth and fourteenth chapters, 
intituled " Summary of the Law of Riot and Insurrection " 
and " Laws and Customs of War," have been already stated at 
sufficient length. These fourteen chapters constitute Part I of the 
work. 

15. Part II consists of the Army Act and Rules of Procedure Army Act 
made under it, which are printed with notes, and are followed by and Rules 
the rules for summary punishment, some forms, &c., relating to 
courts-martial, and the Order in Council relating to discipline on 

board ship. Part III comprises some miscellaneous enactments, 

(M.L.) A. 2 



4 INTRODUCTORY. 

regulations, and forms relating to the Army, and the reserve and 
I auxiliary forces. 

Royal 16. As will be seen hereafter, the Eoyal Marines, who formerly, 

Marines. ' 



when IJ(jt j^.^ on tne \) OO ^ S of any of His Majesty's ships, were 
governed by a Mutiny Act passed for them annually, have now 
been made "subject, when not on the books of a King's ship, to 
the Army Act (a). 

Explanation 17. It will be observed that no mention has been made of 

of expres- mar ti a l law " among the branches of law with which this book 

t ial'iaw"" f deals. The reason for this will now be shortly explained ; but in view 

of the great confusion attaching to the use of the term " martial 

law," its proper meaning must as a necessary preliminary be 

precisely ascertained. 

" Martial Law," then, in the proper sense of the term, means the 
suspension of ordinary law and the government of a country or 
parts of it by military tribunals and must be clearly distinguished, 
in the first place from "military law," tlie nature of which is ex- 
plained above in paragraph (3), and with which it lias sometimes 
been identified (b}, and in the second place from that "martial law" 
which forms part of the laws and customs of war. 

The law of most foreign countries recognises an intermediate 
state between war and peace, known by the name of the state of 
siege, under which the ordinary law is suspended for the time 
being by proclamation, and the country is subordinated in whole 
or in part to military authority by proclamation, but such a state 
of things cannot exist under English law, which never pre- supposes 
the possibility of civil war, and makes no express provision for such 
contingencies. In short, although in the arbitrary times of our 
history attempts were made to apply military law to the civil 
population, such attempts have long been recognised to be illegal. 
Martial law, in the proper sense of the term, can be established 
in the United Kingdom or in a self-governing British Possession 
only by an Act of Parliament or of the local legislature (c). 

It has, however, been well pointed out (d) that "the assertion 
that no such thing as martial law exists under our system of 
Government, though perfectly true, will mislead anyone who does 
not attend carefully to the distinction between two utterly different 
senses in which the term martial law is used " by modern English 
writers. In time of invasion or rebellion, or in expectation thereof, 
exceptional powers are often assumed by the Crown, acting usually 
(though by no means necessarily) through its military forces, for 
the suppression of hostilities or the maintenance of good order 
within its territories (whether the United Kingdom or British 
possessions) ; and the expression " martial law " is sometimes 
employed as a name for this common law right of the Crown and 
its servants to repel force by force in the case of invasion, insurrec- 
tion, or riot, and to take such exceptional measures as may be 
necessary for the purpose of restoring peace and order (e). 



(a) Ch. XI, paras. 32-36, and Army Act, s. 179. 

(b) See Hale, Hist. Com. Law, p.' 34, and speech of Lord Alverstone, C. J., in 
House of Lords, 24th April, 1902. 

(c) See the provisions made in Ireland hy 39 George III. c. 11 (i) (1799) ; 43 Geo III 

03) ; 3 & 4 William IV. c. 4 (1833). In a British possession under the direct 
legislative authority of the Crown a proclamation of martial law by the Crown would 
! as effective as a Statute in the United Kingdom. 

(rf) Dicey, Law of the Constitution, 6th ed., p. 284. 

(c) A full account of the right to use force to suppress riot or insurrection will be 
round :n ch. XIII, paras. 12 seq. 



Martial Law. 5 

The intention to exercise such exceptional powers and to take 
such exceptional measures is generally announced by the issue of 
a " proclamation of martial law ; " but on the one hand such a 
proclamation is not necessary, as the right to exercise these powers 
depends on the actual circumstances and not on the proclamation ; 
and on the other hand, the proclamation of itself in no degree 
suspends the ordinary law, or substitutes any other kind of law ii> 
its stead, but operates only by way of warning that the Govern- 
ment is about to resort, in a given district, to such forcible 
measures as may be necessary to repel invasion, or suppress insur- 
rection, as the case may be. To obviate any question MS to the 
legality of the measures taken for this purpose (whether or not they 
have been preceded by a proclamation of martial law) it has been 
usual to pass an Imperial or local Act of Indemnity, for the pro- 
tection of those engaged, so far as the steps taken by them have 
been reasonably necessary for the purpose, and carried out in 
good faith, and for the confirmation of the sentences passed by 
military courts (a). 

For the purposes of the soldier, it is not necessary to discuss the 
several questions, of great interest to the lawyer, which have 
presented themselves for consideration in connection with the 
exercise of " martial law " during the recent war in South Africa : 
questions such as whether the fact of the ordinary courts of law 
being open is conclusive that there is no necessity for having 
recourse to military tribunals, and how far things done under a 
proclamation of martial Jaw can ultimately be examined in the 
civil courts (b). It is only necessary to add that, when a proclama- 
tion of martial law has been issued, any soldier who takes, in 
accordance with the official instructions laid down for the guidance 
of those administering martial law, such measures as he honestly 
thinks to be necessary for carrying to a successful issue the opera- 
tion of restoring peace and preserving authority, may rely on any 
question as to the legality of his conduct being subsequently met 
by an Act of Indemnity. 



(a) The above paragraph incorporates the substance of Article 18 (" Martial Law 
in the Home Territory ') of the Handbook of the Laws and Customs of War, by 
Professor T. E. Holland, K.C., issued in 1904. 

As to Acts of Indemnity, see (e.y ) the cases mentioned in Clode, Mil. Forces, ii. 
pp. 163-1; 3 and 511; the Cape Colony Indemnity Acts of 1900 and 1902 ; and the 
Natal Indemnity Acts of 1900 and 1901. 

(6) See a discussion of these questions by Mr. G. G. Phillimore in Encycl. oi 
English Law, vol. xiii., under title " Martial Law,"and Note xii. in the Appendix to 
Dicey, Law of the Constitution; and generally on "martial law" ch. viii. of the 
same work. 



CHAPTER II. 



Definition 
of military 
law. 



Object of 

military 

law. 



Military 
law in early 
times con- 
sisted of 
Articles of 
War issued 
when war 
broke out. 



Govern- 
ment of 
troops in 
time of war 
by Articles 
of War. 



Account of 
early 

Articles of 
War. 



HISTOEY OF MILITARY LAW. 

1. Military law, as distinguished from Civil law, is the law 
relating to and administered by military courts, and concerns itself 
with the trial and punishment of offences committed by officers, 
soldiers, and other persons (e.g. sutlers and camp followers) who 
are from circumstances subjected, for the time being, to the same 
law as soldiers. This definition is to a great extent arbitrary, the 
term " military law " being frequently used in a wider sense, to 
include not only the disciplinary, but also the administrative law of 
the army, as, for instance, the law of enlistment and billeting. In 
this chapter, however, the term is used only in the restrictive sense 
above mentioned. 

2. The object of military law is to maintain discipline among the 
troops and other persons forming part of or following an army. 
To effect this object, acts and omissions which are mere breaches 
of contract in civil life e.g., desertion or disobedience to orders- 
must, if committed by soldiers, even in time of peace, be made 
offences, with penalties attached to them ; while, on active service, 
any act or omission which impairs the efficiency of a man in his 
character of a soldier must be punished with severity. 

3. In the early periods of our history military law existed only 
in time of actual war. When war broke out troops were raised as 
occasion required, and ordinances for their government, or, as they 
were afterwards called, Articles of War, were issued by the Crown, 
with the advice of the Constable, or of the Peers, and other ex- 
perienced persons ; or were enacted by the Commander-iii-Chief in 
pursuance of an authority for that purpose given in his commission 
from the Crown (a). These Ordinances or Articles, however, re- 
mained in force only during the service of the troops for whose 
government they were issued, and ceased to operate on the con- 
clusion of peace. Military law, in time of peace, did not come into 
existence till the passing of the first Mutiny Act in 1689. 

4. The system of governing troops on active service by Articles 
of War issued under the prerogative power of the Crown, whether 
issued by the King himself or by the Commander-in-Chief or other 
officers holding commissions from the Crown, continued from the 
time of the Conquest till long after the passing of annual Mutiny 
Acts (6), and did not actually cease till the prerogative power of 
issuing such Articles was superseded, in 1803, by a corresponding- 
statutory power (c). 

5. Numerous copies of these Articles are in existence, made on 
the occasions of the various wars, both foreign and domestic, in 
which England was from time to time involved. The earliest 
complete code seems to have been the " Statutes, Ordinances, and 
Customs" of Richard II, issued by him to his army in the ninth 
year of his reign (1385), and probably on the occasion of the war 
with France (d). These are followed by the statutes of Henry V 
made by him during his conquest of France (e). Domestic dis- 
sensions gave occasion for the orders for the English army 
promulgated by Henry VII, before the battle of Stoke (/) ; and 

(a) Grose, Mil. Antiquities, ii. p. PS. See Commission in Rymer's Fcedera. 

(ft) See Hands v. A'eppel, 2 Wilson's Rep. 314. 

(c) See Mutiny Act of 1803 (43 Geo. III. c. 20). 

(rf) See copy printed in Grose, Mil. Antiquities, ii. pp. 64 ft seq. 

(e) Grose, Mil. Antiquities, ii. p. ti9. (/) Grose, Mil. Antiquities, ii. p. 70. 



Early Articles of War. 7 

iu the Great Eebellion the King and the Parliamentary leaders ch. II. 
alike governed their troops by Articles of War. On the side of 
the Crown, Articles or Ordinances of "War, as they were then 
called, were established by the Earl of Northumberland, in 
1639, for the regulation of the army of Charles I ; whilst, in . 
1642, Lord Essex, the leader of the Parliamentary forces, under 
authority given by an ordinance of the Lords and Commons, put 
forth Articles of War almost in the same language as the Eoyal 
Articles of War (a). Articles of War were also issued by Charles 
II in 1666, when the first Dutch war was declared, and in 1672, 
upon the outbreak of the second Dutch war ; and by James II in 
1685, on the occasion of Monmouth's rebellion (6). 

6. The earlier Articles were of excessive severity, inflicting death Severity of 
or loss of limb for almost every crime. Gradually, however, they ^j^ 
assumed somewhat the shape which they bore in modern times, 

and the Ordinances or Articles of War issued by Charles II in 1672 
formed the groundwork of the Articles of War issued in 1878, 
which were consolidated with the Mutiny Act in the Army 
Discipline and Regulation Act of 1879, now replaced by the Army 
Act (c). 

7. Attempts were made from time to time, especially during illegal 
the despotic reigns of the Tudors, to enforce military law under the g^^ 3 U 
prerogative of the Crown in time of peace ; but no countenance military 
was afforded to such attempts by the law of England ; and com- law in time 
missions for the execution of military law in time of peace issued pe 

by Charles I in 1625 and the following years gave rise to the 
declaration in 1628, contained in the Petition of Right (3 Cha. I, c. 1), 
that such an exercise of the prerogative was contrary to law(o). 
The law having been thus declared, the question of the legality of 
the Articles of War issued in 1639 came under the notice of the 
Council Board in July, 1640, and the lawyers and judges were all 
of opinion that martial law could not be executed in England " but 
when an enemy is really near to an army of the King's " (e). So, 
again, it was stated in Parliament by Mr. Secretary Coventry 
that the articles of 1672 were only to be executed abroad (/), and 
the operation of the Articles of 1685 was limited to the duration 
of Monmouth's rebellion (#). In short, the only direct assistance 
in the enforcement of military discipline given by the law before 
the passing of the first Mutiny Act was afforded by certain 
statutes enforceable before civil and not before military tribunals, 
which made desertion punishable as a felony ( /z). 

(a) See these Articles set out in Clode, Mil. Forces, i. App. vi. and viii. 
(6) Clode. Mil. and Martial Law, pp. 9-19. As to Articles of War by Will. III. 
see Clode, Mil. Forces, i. p. 503 ; and by Anne, 2 & 3 Anne, c. 20. 

(c) A comparison of the ancient with the more modern Articles of War will show 
how sh'ght are the changes which have been made in military law during a series 
of years. It is easy to trace in the Articles of Richard II. the germ of the Articles 
of 1878, at:d having regard to the changes in custom and manners, the difference in 
the character of the regulations is less than might lip.ve been expected. 

(d) See extract from the Petition of Rigtit printed below, p. 613. 

(e) Clode, Mil. Forces, i. p. 23, and App. vii. (/) Cobtett's Parl. Hist., iv. 619. 
(g) Clode, Mil. Forces, i. p. 79, and App. xxiv. 

(A) 18 Henry VI. c. 19 (1439), made it a felony for a soldier to leave his captain and 
the King's service without licence. 7 Henry VII. c. 1 (1490), repeated by 3 Henry 
VIII. c. 5 (1511), provided that if a soldier immediately retained by the King departed 
out of the King's service without licence of his captain, it should be deemed to 
be felony. See The Case of Soldiers, Coke's Reports, part^vi. p. 27 (43 Eliz.), which 
decided that the first Act was obsolete, but that the second and third were perpetual. 
See p. 154, note (e) ; see also 2 & 3 Edward VI. c. 2 (revived by 4 & 5 Phil. & Mar. 
c. 3), which imposed punishments on soldiers furnished at the cost of others, for 
making away with their horses, and made their departure from service without 
licence punishable as felony, and provided also for the punishment of officers impro- 
perly discharging soldiers. 



8 



HISTORY OF MILITARY LAW. 



Ch. II. 

Court of 
Chivalry 
the origin 
of military 
courts. 

Constitu- 
tion of 
Court of 
Chivalry. 



Civil juris- 
diction of 
Court of 
Chivalry. 



Criminal 
jurisdiction 
of Court of 
Chivalry. 



Administra' 
tion of 
military 
law by 
Court of 
Chivalry. 



8. The origin of later'military courts is to be found in the Court 
of Chivalry, the ordinary judges of which were the Constable, or 
Lord High Constable, who was originally the King's General ; and 
the Marshal, or Earl Marshal, whose duty it was to marshal the 
army, and to ascertain whether the persons liable to serve the 
King in his wars fulfilled their services (a). 

9. The Court of Chivalry formed part of the Curia Regis, or 
Supreme Court established in England by William the Conqueror. 
The Curia Regis was a Court in a double sense : first, in the sense 
of being composed of the great officers of State ; and secondly, in 
the sense of being a judicial body, as each of the great officers had 
judicial authority over the officers and persons belonging to or 
having dealings with his department. In this division of jurisdic- 
tion the Constable or Comes Stabuli, or Master of the Horse, (to 
use the modern designation) was Commander-in-Chief of the army, 
and had allotted to him the army, and all persons and matters 
connected therewith : while he and the Marshal together consti- 
tuted the Court of Chivalry which exercised both civil and criminal 
jurisdiction (b). 

10. Its civil jurisdiction was that of a court of honour, and 
consisted in redressing injuries of honour, and correcting encroach- 
ments in matters of coat armour, precedency, and other distinctions 
of families. It also exercised jurisdiction in respect of contracts 
connected with war out of the realm, and in this respect gradually 
infringed on the jurisdiction of the ordinary courts, until such 
infringements were restrained, and the powers of the court were 
defined, by two Acts passed in the reign of Richard II. The first 
of these (8 Eich. II. c. 5, 1384) enacted, " that all pleas and suits 
touching the common law of the land, and which ought to be 
examined and discussed by the common law, shall not hereafter be 
by any means drawn or holden before the Constable and Marshal, 
but that the court of the said Constable and Marshal shall have 
that which belongeth to the said court;" while the second 
(13 Eich. II. stat. I, c. 2, 1389) declared the jurisdiction of the 
court to consist in the " cognizance of contracts touching deeds of 
arms, and of war out of the realm, and also of things that touch 
arms or war within the realm which cannot be determined nor 
discussed by the common law, with other usages and customs to 
the same matters pertaining." 

11. The criminal jurisdiction of the Court, except in time of 
war, was confined to the punishment of murder and other civil 
crimes committed by Englishmen in foreign lands (c). In time of 
war, however, its jurisdiction was extended, and the court, which 
was more usually called the Court of the Constable, acquired 
somewhat of the character of a permanent court-martial, as it 
followed the march of the army, and punished summarily, and 
in accordance with the Articles of War for the time being in force, 
all offences committed by the troops. 

12. Such being the jurisdiction of the Court, it is obvious that it 
must from time to time have been necessary, as, for instance, in case 

(a) See an account of the duties of the Constable and Marshal, in Stubbs, Constit. 
Hist, of England, i. p. 338, notes 1 & 2. See also Grose, Mil. Antiquities, i. 
eh. 7. 

(/>) See as to the jurisdiction of the Court of Chivalry, Coke, 1 Inst. 746 ; 4 Inst. 
127 ; Bac. Abr. 5th edn., ii. p. 141 ; Hale, Hist. Com. Law, p. 40; Comyn's Digest, 
iii. p. :<il ; Christian's Blackstone, iv. p. 267. 

(<) The Court seems to have infringed on the jurisdiction of the ordinary criminal 
courts as well as on that of the ordinary civil courts, and such infringement was 
restrained by statute in 139P (1 Heurv IV. c. 14). 



Court of Chivalry. 9 

of simultaneous military operations in different quarters, to provide Ch. II. 
for its exercise at different places at the same time, and 'conse- 
quently by different persons ; and accordingly we occasionally find 
several Constables and Marshals holding office and exercising 
jurisdiction at the same time. It is not quite clear whether the 
several Constables and Marshals from time to time appointed 
exercised judicial functions in the administration of military law 
merely by virtue of their offices, or by virtue of special commissions 
from the Crown. Probably the power to administer such law 
was chiefly conferred by commissions (a), and the administration of 
military law was thus less affected than would otherwise have been 
the case by the extinction of the office of High Constable, as a 
permanent office, in the 13th year of the reign of Henry VIII 
(1521). 

13. In that year the office, which had in accordance with the Extinction 
general tendency of the great offices of State in early times, become jjig^ * 
hereditary in the family of the Bohuns, Earls of Hereford and Constable. 
Essex, was forfeited to the Crown on the attainder and execution 

of Edward, Duke of Buckingham, the then High Constable, and 
since that time a High Constable has never been appointed perma- 
nently, but only on occasions of coronations and like ceremonies (6). 
The office of Earl Marshal, on the other hand, long continued to 
be held only by grant from the Crown, and did not become 
hereditary till the 25th year of the reign of Henry VIII, when it 
was granted to Thomas Howard, Duke of Norfolk, and his heirs 
male, in which line it still continues. 

14. This change seriously affected the ordinary jurisdiction of i31 
the Court of Chivalry (o) ; but does not seem to have materially military 
affected the administration of military law, which was subsequently |^^J f 
provided for (as had probably been the case before the extinction commis- 
of the office of High Constable), by commissions from the Crown, sions. 
or by clauses inserted in the commissions of the Commaiiders-in- 
Chief authorising them to enact ordinances for the government of 

the army under their command, and to sit in judgment themselves, 

or appoint deputies for that purpose (d). These deputies consisted Councils of 

of officers, and out of their sittings there gradually arose a new 

form of military tribunal, under the denomination of a Court or 

Council of War, which sat at stated times under an officer of a 

certain rank, who was styled the President. 

15. The transition from a Council of War to Courts-Martial in 
their present form was a matter more of name than of substance. 

(a) Hale says (Hist. Com. Law, p. 40), "Tlie Military Court held before the 
Constable and Marshal antiently, as the Judice? Orainarifin this case, or otherwise 
before the King's Commissioners of that jurisdiction as Judices drlegati." See also 
Bac. Abr., ii. p. 152; and as to the appointment of Constables and Marshals, Grose, 
Mil. Antiquities, i. pp. 191 and 192. Kymer's Foedera, annis 1399, 1400, and 
elsewhere. 

(6; Cc>ke, 1 Inst., 74* ; 4 Inst. 127. Grose, Mil. Antiquities, i. p. 190. 

(c) See Coke, I Inst., by Hargrave and Butler, 746, note (1). The Earl Marshal 
undoubtedly exercised the civil jurisdiction of the Couit of Chivalry for a long 
time after the extinguishment of the permanent office of the Constable. See as to 
the jurisdiction of the Earl Marshal's Court, a letter to Sir John Somers, Attorney- 
General, from Hobert Plot, LL.D., Hearne's Curious Discourses, ii. p. 250. See also 
the case of Oldis v. Domville, Shower's Cases in Parliament, p. 58. The last com- 
mission to the High Constable to act as a criminal judge was issued by Charles I. 
in 1631, upon an appeal of treason brought by Donald, Lord Rae, against David 
Ramsay, Esq., for treasonable words and purposes. In this Court the accused was 
entitled to wager of battle ; but on further reflection the King withdrew his com- 
mission and the duel was never fought. See Thomson, Mil. Forces of Great Britain 
and Ireland, pp. 38, 39. The Court of Chivalry has never been abolished by law. 
In consequence of an appeal of death in 1818, the wager of battle was shortly after 
abolished by law. Axhford v. Thornton, \ Barn, and Aid. p. 405. 

(d) Grose, Mil. Antiquities, ii. p. 60, et seq. 



10 HISTORY OF MILITARY LAW. 

Oh. II. The exact time at which courts-martial under that name began to 
be held' is not ascertained, but they are mentioned with the distinc- 
tion of general and regimental courts-martial in the Articles of 
War issued on the outbreak of the Dutch War, in 1672, by Prince 
Rupert, as Commander-in-C'hief, under the authority of a commis- 
sion from Charles II (a). There was this difference between the 
earlier courts-martial and the military courts-martial of the present 
day, that in the earlier courts the general or governor of the 
garrison who convened the court ordinarily sat as President, and 
that the power of the Court was plenary, and their sentences were 
carried into execution without the confirmation required under 
the present law. 

code irrtime le - Before the establishment of a standing army no necessity 

of peace existed for a military code in time of peace ; but when, after the 

n^cessa^y Restoration in 1660, such a force was established, the necessity of 

by estab- special powers for the maintenance of discipline began to be felt. 

Hshment of The growth of the army was, however, always regarded with 

army!" 8 jealousy, and Parliament was therefore unwilling to confer such 

powers on the Crown until it became absolutely necessary to do 

so. The small number of men forming the garrisons maintained 

before the Rebellion, and the armies of Charles II and James II, 

were tolerated rather than sanctioned by Parliament, and were 

therefore governed without such powers, and rather as the retainers 

of a great man than as an army. For though in 1662 Charles II 

issued Articles for the government of his guards and garrisons, 

offences involving the penalty of death were expressly reserved for 

trial by the known laws of the land, or by special commission under 

the Great Seal by the advice of the judges and lawyers. Again, 

the Articles issued by James II in 1686, which provided for the 

punishment of offences by courts-martial, expressly prohibited the 

infliction of any punishment amounting to loss of life or limb in 

time of peace (b). Discipline, therefore, was naturally lax; and 

when on the accession of William and Mary the maintenance of 

the army was sanctioned by Parliament, the loose discipline and 

general disaffection prevalent among the troops led to special 

powers being granted for their coercion. 

SSng"^ 17 ' On the lst March, 1689, in a debate in the House of Commons 
first Mutiny on a message from William and Mary, suggesting the suspension 
Act - of the Habeas Corpus Act, the necessity was urged of a measure for 

the regulation of the army (c), and on the 1 3th leave was given to 
bring in a Bill to punish mutineers and deserters from the army 
for a limited time, and a committee was appointed to prepare it (rf). 
Almost at the same time 800 men enlisted by James II, who had 
been ordered by William to embark for Holland, mutinied at 
Ipswich, and marched northward, declaring that James was their 
king, and that they would live and die by him ; and this danger, 
which was reported to both Houses on the 15th March (e), 
doubtless facilitated the passing of the Bill, which was intro- 
duced into the House of Commons on the 18th, and having passed 
through all its stages by the 28th, was passed by the House of 
Lords on the same day, and received the Royal Assent on the 3rd 
April (/). 

(a) See Code printed in 1866 by the Koyal Commission on Itecruiting the Army, 
Parl. Papers, 1867, Art. 59, p. 241. 

(b) Memorandum by Mr. Clode. 

(c) Cobbett's Parl. Hist., v. pp. 154, 155. (d) 10 Comm. Journ. 47. 
(e) Cobbett's Parl. Hist., v. pp. ll'l'-lsi'. 

(/) 10 Comm. Journ., 49, 52, 53, 64, 67, 69 ; 15 Lord's Journ. 164, 165. 



Establishment of Standing Army : First Mutiny Act. 11 

18. This Bill, which is known as the first Mutiny Act (1 Will. Ch. II. 
& Mary, c. 5), was prefaced by a preamble declaring the necessity Ob ; 

for and the objects of the Act in terms which were repeated sco ' pe O f 
without substantial alteration in each subsequent Mutiny Act first Mutiny 
until the year 1878, and have now been transferred to the pre- ' 
amble of the annual Act bringing the Army Act into force (a). 
Mutiny and desertion when committed by persons in their Majesties' 
service in the army were made punishable by death or such other 
punishment as by a court-martial should be inflicted. Power 
was given to their Majesties or the general of their army to grant 
commissions for summoning courts-martial for punishing such 
offences, and it was further provided that the Act should not 
extend to the Militia, and should not exempt any officer or soldier 
from the ordinary "process of law. The duration of the Act was 
limited to seven months, from the 12th April, 1689, to the 10th 
November in the same year. 

19. On the 19th October, 1689, Parliament reassembled, and a Second 
second Mutiny Act (1 Will. & Mary, sess. 2, c. 4) was passed Mutiny Act. 
during the session, which received the Royal Assent on the 23rd 
December, and was ordered to come into force on the 20th,. so that 

an interval of more than a month occurred between the lapse of 
the first and the coining into force of the second Act (6). 

20. Successive Mutiny Acts, with the exception of certain short Succession 
intervals, were subsequently passed annually from the year 1690 A. cts 'tiiT y 
to the year 1878 (c). 1878. 

21. To indicate in detail the changes which took place in the Periods in 
various Mutiny Acts from the first in 1689 to the termination of ^"rthy of* 
the series in 1879, on the passing of the Army Discipline and observation. 
Regulation Act, would be out of place in the present work ; but 

it may be useful to point out the various periods, so to speak, in 
military legislation, and the principal changes which took place 
from time to time, until military law assumed the form which it 
bears in the Army Act. 

22. The first period lasted till 1712. During this period the From 1689 
Mutiny Acts did not extend to the dominions of the Crown to 1712 - 
abroad (rf), and the principal offences punishable under them were 
mutiny and desertion ; but no difficulty was felt from the narrow 
extent of the statutory provisions, inasmuch as the nation was at 

war during almost the whole period, and the main body of the army 
was in consequence on active service, and was governed by Articles 
of War issued by the Crown in pursuance of the prerogative. 

(a) This preamble emphatically states : (1) That the raising or keeping a standing 
army within the United Kingdom in time of peace, unless it he with the consent of 
Parliament, is against law. (2) That no man can he fore-judged of life or limb, or 
subjected in peace to any kind of punishment within this realm by martial law, or 
in any other manner than by the judgment of his peers, and according to the 

I known and established laws of the realm. See the text of the Army (/Vnnual) Act, 
infra, p. 257. 

(6) Copies of the Mutiny Acts to the end of the reign of Anne will be found in the 
Record Edition of the Statutes. A copy of the first Mutiny Act will also be found 
in Clode, Military and Martial Law, Appendix A, p. 182 ; Mil. Forces, i. p. 499 ; 
also in Grose, Mil. Antiquities, ii. p. 73. 

(c) The Mutiny Act of 1690 expired on the 20th December, 1691, and the next 
Act passed on the 14th March, 1692, but it was ordered to be in force from the 10th 
of that month The Act of 1694 expired on the 1st March, 1695, but was continued 
in force from the 10th April, 1695, to the 10th April, 1696, by an Act passed on the 
22nd April, and having therefore a retrospective operation. Again, there was a lapse 
from the 10th April, 1698, to the 20th February, 1702, Grose, i. p. 64; and the 
P.ecord Edition of the Statutes. See also table in Clode, Mil. Forces, i. pp. 389-391. 
The authorities for the statements as to the Mutiny Acts are an analysis of these 
Acts prepared by Mr W. L. Selfe (now Judge Selfe), of Lincoln's Inn, and a 
memorandum by Mr. Clode on the Articles of War and Mutiny Acts. 

(rf) The Act was extended to Ireland in 1702 (13 & 14 Will. III. c. 2), and to 
Scotland in 1707 (7 Anne, c. 4). 



12 



HISTORY OF MILITARY LAW. 



Ch. II. 

Lapse of 
Mutiny Act 
from 1698 
to 170:.> in 
time of 
peace. 

Renewal of 
Act in 1702. 



Power to 
make 
Articles of 
War bind- 
ing on the 
army in 
time of 
peace when 
out of the 
Kingdom, 
conferred 
by Mutiny 
Act of 1712. 



Power 
extended by 
Mutiny Act 
of 1715. 



23. From 1698 to 1702 the nation was at peace, and the Mutiny 
Act was allowed to drop. The greater part of the army was 
disbanded at the same time, and though the King was allowed 
by statute (10 Will. Ill, c. 1) to maintain 7,000 troops in England 
and 12,000 in Ireland, no special powers were conferred upon him 
for their government. 

24. On the renewal of hostilities in 1702, the Mutiny Act was 
revived, and extended to Ireland ; and in the next year clauses 
were added for the better enforcement of discipline abroad, which 
provided that certain offences committed abroad should be triable 
in England as treason or felony. These clauses, however, were 
accompanied by a proviso saving the power of the Crown to make 
Articles of War and constitute courts-martial and inflict penalties 
by sentence or judgment of the same beyond the seas in time 
of war, and by a clause empowering the Crown to grant com- 
missions for holding courts-martial within the realm, by which 
persons committing crimes out of the realm against the Articles 
of War, and not tried by courts-martial before their return, might 
be tried and punished according to the Articles of War (a). 

25. On the conclusion of the Peace of Utrecht in 1712, the 
Mutiny Act was again allowed to expire, and was replaced by an 
Act "for better regulating the forces to be maintained in Her 
Majesty's service," by which mutiny, desertion, and certain other 
offences were made punishable by such punishments as a court- 
martial should adjudge, not extending to life or limb ; power 
being at the same time given to inflict by sentence of court-martial 
corporal punishment not extending to life or limb, on soldiers for 
immoralities, misbehaviour, or neglect of duty. The operation of 
this Act was restricted to Great Britain and Ireland ; but at the 
same time the difficulty was felt of maintaining discipline amongst 
the troops in the colonies and elsewhere out of the kingdom, as the 
prerogative power of governing such troops by Articles of War 
had been suspended by the conclusion of peace. A statutory 
power was therefore given to the Crown to make Articles of War 
and constitute courts-martial in any of Her Majesty's dominions 
beyond the seas, or elsewhere beyond the seas, " in such manner 
as might have been done by Her Majesty's authority beyond the 
seas in time of war " (b). 

26. On the breaking out of the rebellion in 1715, difficulties 
arose in maintaining discipline among the troops serving in the 
kingdom. For though troops serving elsewhere in the dominion 
of the Crown might be dealt with under statutory Articles of War, 
which could impose death for the most serious military offences, 
the troops in the kingdom were under a different law. The then 
existing Mutiny Act (c), by imposing a punishment for the most 
serious military offences, had superseded the prerogative power of 
making Articles of War in respect of those offences, though com- 
mitted by troops engaged in war by reason of the rebellion, but 
as the punishment under the Act was not to extend to life or 
limb, it was insufficient to maintain discipline. Accordingly an Act 
was passed in 1715 (of), reimposing the punishment of death for 
nmtiny, desertion, and the offence now known as fraudulent enlist- 
ment, in Great Britain and Ireland, and conferring on the Crown 

(a) 13 & 14 Will. III. c. 2 ; 1 Ann. stat. 2, c. 20 (c. 16 in Ruffhead). 

(b) If Ann. c. 13. in the Record Edition of the Statutes (c, 12 in Ruffhead). 
(<;) 1 Geo. I. slat. 2, c. 3. 

(i/) 1 Geo. I. stat. 2, c. 9. 



Observations on Mutiny Acts and Articles of War. 13 

statutory power to make " Articles for the better government of Oh. II. 
His Majesty's forces, and inflicting penalties to be proceeded upon 
to sentence or judgment in courts-martial to be constituted 
pursuant to this Act." 

27. Subsequently (a), the two powers of making Articles of War Mutiny Act 
for the troops in the kingdom and for those in the other dominions c 

of the Crown were combined, and in the Act of 1718(6) received 
the form which was retained until 1803. The Act of 1718 conferred 
on the Crown a power to make Articles of War and constitute 
courts-martial with power to try offences under such articles, and 
inflict penalties by judgment of the same, " as well within the 
kingdoms of Great Britain and Ireland, as in any of His Majesty's 
dominions beyond the seas." The Articles of War made under 
the Act of 1712 and subsequent Acts not being limited to the 
time of war, applied to the troops also in time of peace. 

28. At about the same time the provisions of the Mutiny Act, Extension 
which enacted death or corporal punishment for mutiny, desertion, AcUrf" 15 ' 
and other specified offences, and which had previously been re- Colonies, 
stricted to offences committed in Great Britain or Ireland, were 
extended to some of those offences if committed in His Majesty's 
dominions abroad, and to others wherever committed (c) ; and the 

Act and statutory power were subsequently re-enacted annually in 
this form, without material alteration, until 1802 (d). 

29. By these successive changes the Crown gradually acquired power 
a complete statutory power for the government of the army in govern 
time of peace, whether at home or in the colonies, by means of the ^tutory 
Mutiny Act and the Articles of War made thereunder, co-extensive Articles in 
with the prerogative power of governing troops serving in foreign Kingdom 
countries in time of war by means of Articles of War made under j n time of 
the prerogative ; and as further dominions abroad were gradually peace co- 
acquired, the Act and statutory Articles were from time to time ^itifp'ower 
extended, so as to provide for the enforcement of discipline among to govern 
the garrisons maintained in such dominions (e). The Act and tj^Trticfes 
statutory Articles were not, however, extended to foreign countries, j n foreign 
as it was still assumed that the army never could be in a foreign countries in 
country except in time of war, and troops engaged in active service ' 

in such countries were governed as before by the prerogative 
Articles. 

30. That this was so is clear from the case in 1761 of Barwis Case of 
v. Keppel ( f\ in which the Court of King's Bench decided that Barwis \. 
neither the Mutiny Act nor the Articles of War made thereunder KeppeL 
applied to the army when engaged in war abroad. It seems 
probable, however, that the Articles issued under the prerogative 
which governed the army when so engaged were the same in 

form as the statutory Articles which governed the army at other 
times, and hence arose the question, decided in the negative in the 

(a) 1 Geo. I. stat. 2, c. 34 ; 3 Geo. I. c. 2. 
(6) 4 Geo. 1. e. 4. 

(c) Compare 1 Geo. I. stat. 2, c. 34 ; 3 Geo. I. c. 2 : 4 Geo. I. c. 4 ; 9 Geo. I. c. 4 

(d) In 1781 (21 Geo. III. c. 8) the provisions of the Act enacting punishments for 
certain offences were extended to the specified offences wherever committed ; but 
the power to constitute courts-martial was still restricted to the Kingdom and the 
dominions of the Crown abroad. 

(e) The Act and Articles were extended to the Channel Islands in 1756-7 (30 
Geo. II. c. 6), and to the Isle of Man in 176(5 (6 Geo. III. c. 8) ; and in 1767 (7 Geo. III. 
c. 10) special provisions were made as to the constitution of courts-martial in the 
garrisons of Goree and Senegal, and detachments therefrom. Ireland was excluded 
from the operation of the Act, but not of the Articles, in 1781 (21 Geo. III. c. 8), a 
separate Mutiny Act for that country being passed in that year by the Irish Parlia- 
ment (21 & 22 Geo. III. c. 43 (1) ) ; but it was again included after the Union. 

(/) 2 Wilson's Reports, 314. 



14 



HISTORY OF MILITARY LAW. 



Oh. II. 



Extension 
of Mutiny 
Act and 
statutory 
Articles to 
foreign 
countries in 
1803. 



Prerogative 
Articles 
finally 
superseded. 



Army Disci- 
pline and 
Regulation 
Act, 1879. 



Army Act, 

1881. 



Annual' 
Acts. 



case referred to, as to whether the Mutiny Act and statutory 
Articles extended to the army when engaged in war in foreign 
countries. 

31. In 1803, by 43 Geo. Ill, c. 20, the great change was made of 
extending the Mutiny Act and the statutory Articles of War to 
the army whether within or without the dominions of the Crown. 
This alteration also was made on the occasion of a peace the Peace 
of Amiens and was made, as appears from the Preamble to the 
Act, in order to provide for the government of the troops engaged 
in the late war who had not yet been brought home, and who 
could no longer be governed by prerogative Articles, tKe power of 
making such Articles having been suspended on the conclusion of 
peace. 

32. On the resumption of hostilities, the Act and statutory 
Articles might have been again restricted in their operation to 
the dominions of the Crown, and the troops engaged in foreign 
war might have been left to be governed as before by prerogative 
Articles. This course, however, was not adopted, but the Act 
and statutory Articles were applied in 1813 towards the close of 
the Peninsular War to the troops without as well as to those 
within the dominions of the Crown (a) ; and the prerogative 
power of making Articles of War in time of war was thus finally 
superseded by a statutory power. The law as then settled has 
been continued ever since, and the army, both in peace and war, 
was governed by the Mutiny Act and statutory Articles until 
the year 1879. 

33. This brings us to the Army Discipline and Regulation Act, 
1879. The inconvenience of having a military code contained partly 
in an Act of Parliament and partly in Articles of War made under 
and deriving validity from that Act had long been felt, and led 
at length to the consolidation of the provisions of the Mutiny Act 
and Articles of War in one statute. 

34. Two years later the Army Discipline and Regulation Act, 
1879, was repealed, and re-enacted with some amendment in the 
Army Act of 1881. 

Thus has been accomplished, after the lapse of more than a 
century, a wish expressed by Mr. Justice Blackstone in his 
Commentaries, " That it might be thought worthy the wisdom of 
" Parliament to ascertain the limits of military subjection, and 
" to enact express Articles for the government of the army " (6). 

35. The Army Act has of itself 110 force, but requires to be 
brought into operation annually by another Act of Parliament, 
thus securing the constitutional principle of the control of Parlia- 
ment over the discipline requisite for the government of the army, (c) 
These annual Acts afford opportunities of amending the Army Act, 
of which considerable use has been made. 



(a) 53 Geo. III.c. 17, s. 146. 

(6) Christian's Blackstone, i. p. 415. 

(c) See Army Act, s. 2 ; the preamble and first three sections of the annual Act 
are always in the same form, except that in 1907 the date on which the Army Act I 
expires in certain places abroad was altered : see iiifra, p. 257. 



15 



CHAPTER III. 



OFFENCES AND SCALE OF PUNISHMENTS. 

1. Part 1 of the Army Act classifies under various heads the ciassifica- 
military offences formerly contained in the Mutiny Act and ^[j^. 
Articles of War. It includes all the offences for which officers offences, 
or soldiers in their military capacity are punishable by a co'urt- 
inartial, with the exception of those relating to taking money for 
commissions (a). 

2. The principle adopted in classifying the strictly military Principle 
offences is that of grouping together offences of a similar character, tion? 
and ranging the various groups as between themselves in a manner 
intended to impress the soldier with their relative military im- 
portance. For example, the Act begins with Offences in respect of 
Military Service (ss. 4-6), and these are followed by the heading 
Mutiny and Insubordination (ss. 7-U-), by way of showing that 

gross misbehaviour in the field, mutiny, and insubordination rank 
first among military offences. The above headings are followed 

b y 

Desertion, Fraudulent enlistment, and Absence without leave 
(ss. 12-15) ; 

Disgraceful conduct (ss. 16-18) ; 

Drunkenness (s. 19) ; 
| Offences in relation to Persons in Custody (ss. 20-22) ; 

Offences in relation to Properly (ss. 23, 24) ; 

Offences in relation to False Documents and Statements (ss. 25-27) ; 

Offences in relation to Courts-martial (ss. 28, 29) ; 

Offences in relation to Billeting (s. 30) ; 

Offences in relation to Impressment of Carriages (s. 31) ; 

Offences in relation to Enlistment (ss. 32-34) ; 

Miscellaneous Military Offences (ss. 35-40) ; 

Lastly come Offences punishable by ordinary Law (s. 41) of which 
the most serious are only triable by courts-martial under certain 
circumstances and subject to certain restrictions (ft). 

3. For the most part the military offences are laid down by the offences 
Army Act in the same, or nearly the same, language as that of the dealt with 
former Mutiny Acts and Articles of War. Those which from their " 
importance or comparative frequency reqxiire a more detailed 

notice than others, are dealt with in this chapter ; the rest are 
explained, so far as necessary, in notes to the Act. 

4. Mutiny and Insubordination. The term " mutiny " implies Definition 
collective insubordination, or a combination of two or more persons of mutiny, 
to resist or to induce others to resist lawful military authority. 

A man cannot be charged generally with mutiny, or with an act 
of mutiny, but only with some one or more of the specific offences 
laid down in s. 7. If he has not brought himself within the terms 
of that section, his offence, however much it may tend towards 
mutiny, must be dealt with as insubordination, under s. 8 or s. 9, 
which afford ample powers for the purpose. Thus, where there is 

(a) Army Act, s. 155. 
(i) See ch. VII. 



Framing 
charge of 
mutiny. 



Definition 
of sedition. 



16 OFFENCES AND SCALE OF PUNISHMENTS. 

Ch. III. an actual mutiny or a conspiracy to mutiny, all concerned in the 
mutiny or conspiracy can be tried under s. 7 for causing or con- 
spirino- to cause, or" joining in the mutiny, as the case may be. 
If no mutiny or conspiracy exists, a man can only be tried under 
s. 7 on a charge of endeavouring to persuade some person in His 
Majesty's forces or in the navy to join in an intended mutiny, or 
of failing to inform his commanding officer of an intended mutiny. 

5. In framing a charge therefore under s. 7, the specific act or 
acts which constitute the offence must always be alleged ; and the 
offence is so grave that a charge for it should only be brought on 
very clear evidence. Cases of insubordination, even on the part of 
two or more, should, unless there appears to be a combined design 
on "their part to resist authority, be charged under s. 8 or s. 9. 
If an insubordinate act were committed which could not be charged 
under any of the sections of the Act relating to mutiny and insub- 
ordination, it must be charged under s. 40 as an act to the prejudice 
of good order and military discipline. Provocation by a superior, 
or the existence of grievances, is no justification for mutiny or 
insubordination, though such circumstances would be allowed due 
weight in considering the question of punishment. 

6. Sedition in s. 7 of the Act is the same offence as in the 
ordinary criminal law, and consists in doing any act or publishing) 
any words tending to bring into hatred or contempt, or to excite 
disaffection against, the Sovereign, or the government and con- 
stitution of the United Kingdom, or either House of Parliament, 
or the administration of justice ; or to excite His Majesty's subjects 
to attempt to procure otherwise than by lawful means the altera- 
tion of the law, or to incite any person to commit any crime in I 
disturbance of the peace, or to raise discontent and disaffection j 
among His Majesty's subjects, or to promote feelings of ill-will 
and hostility between different classes of such subjects. A person 
is not guilty of sedition who acts in good faith, merely intending 
to point out errors or defects in the government or constitution or 
the administration of justice, or to promote alteration of the law 
by legal means, or to point out, with a view to their removal, 
matters which have a tendency to produce feelings of hatred 
between different classes of His Majesty's subjects. It is not, 
however, intended to imply that an officer or soldier is at liberty to 
enter on any such course of action or discussion, but simply to point 
out the legal meaning of the term sedition. 

7. Closely connected with the offence of mutiny is the offence of 
disobedience to a lawful command, which is punishable under s. 9 
of the Act (a). No offences differ more in degree than offences of 
this class. The disobedience may be of a trivial character, or may 
be an offence of the most serious description, amounting, if two or 
more persons join in it, to mutiny. Accordingly the object of this 
section is to enable charges to be framed in such manner as to 
discriminate between different degrees of the offence. 

8. The essential ingredients of the first and graver offence under 
the section are that the disobedience should show a wilful defiance 
of authority, and should be disobedience of a lawful command given 
personally and given in the execution of his office by a superior officer ; 
in fact, it would ordinarily be such an offence as would be mutiny 
if two or more persons joined in it. In order to convict a man it 
must be shown (1) that a lawful command was given by a superior 



Offences of 
disobedi- 
ence to a 
lawful 
command. 



Definition 
of graver 
offence of 
disobedi- 
ence. 



(a) for the history of this enactment, see Clode, Mil. Forces, i. p. 156. 



Mutiny and Insubordination. 17 

officer ; (2.) that it was given personally by such officer ; (3.) that Ch. III. 

Ct was given by such officer in the execution of his office (a) ; (4.) 

that the man disobeyed it, not from any misunderstanding or 

slowness, but so as to show a wilful defiance of his superior officer's 

-authority. For example, a man not falling in for escort duty 

when ordered to do so by his non-commissioned officer, may have 

failed to hear the order or may be merely slow in executing it ; 

011 the other hand, the refusal may be deliberate and obstinate, 

so as to show in the clearest manner an intention to defy and 

resist superior authority. 

9. The second and less grave offence laid down by the section Of less 
consists of disobedience to any lawful command given by a superior ^,^,^1" 
officer, which is not accompanied by the essential ingredients of cnce. 
the graver offence. To constitute this offence it is essential that 

the disobedience should be wilful and deliberate, as distinguished 
from disobedience arising from forgetfulness or misapprehension, 
which can only be punished under s. 40 (6). The disobedience must 
fiave reference to the time at which the command is to be obeyed. 
Jf the command be a lawful command, and demands a prompt and 
immediate compliance, hesitation or unnecessary delay in obeying 
it may constitute disobedience fully as much as a positive refusal 
to obey, though mere omission or hesitation can seldom constitute 
the graver offence referred to in the preceding paragraph ; but if 
the command is of a prospective nature, a man, before he can be 
guilty of disobedience, must have had an opportunity to obey the 
command. For example, if the command is to turn out for parade 
in half an hour, then, until the expiration of that time, no offence 
of disobedience to a lawful command can be committee! If the 
soldier on receiving the command makes a reply implying an 
intention to refuse, and is put in the guard-room before the end of 
.the half hour, he may be charged under s. 8 with using insub- 
jordmate language ; or under s. 40 with conduct to the prejudice 
of good order and military descipline in respect of the improper 
language, but not with the offence of disobedience to a lawful 
command. 

10. " Lawful command " means not only a command which is not W^ is * 
contrary to the ordinary civil law, but one which is justified by 
military law ; in other words, a lawful military command, whether 

to do or not to do, or to desist from doing, a particular act. A 
superior officer has a right at any time to give a command, for the 
purpose of the maintenance of good order, or the suppression of a 
disturbance, or the execution of any military duty or regulation, 
or for any purpose connected with the amusements and welfare 
of a regiment or other generally accepted details of military life, 
But a superior officer has no right to take advantage of his 
military rank to give a command which does not relate to military 
-duty or usages, or which has for its sole object the attainment of 
some private end. Such a command, though it may not be un- 
lawful, is not such a lawful command as will make disobedience 
to it criminal. In any case of doubt, the military knowledge and 
^experience of officers will enable them to decide on the lawfulness 
-or otherwise of the command. 

11. If the command were obviously illegal, the inferior would be Duty of 

obedience. 

3 (a) As to the meaning of " superior officer," and " in the execution of his omce," 
.see note to section 8 of the Army Act. 

(6) Even under 6. 40, the neglect must be wilful or culpable and not merely 
-arising from ordinary forgetfulness or error of judgment or inadvertence. See 
taote to the section. 

(M.L.) B 



18 



CRIMES AND SCALE OF PUNISHMENTS. 



' 



Religious 
scruples. 



Desertion 

wifiio 
leave. 



Evidence of 

"ofto' 01 
return. 



itself nCe by 
not a 
criterion. 



Evasion of 
service? 11 



justified in questioning, or even in refusing to execute it, as, for 
instance, if he were ordered to fire on a peaceable and unoffending 
bystander. But so long as the orders of the superior are not 
obviously and decidedly in opposition to the law of the land, or 
to the well-known and established customs of the army, so long 
must they meet prompt, immediate, and unhesitating obedi- 
ence (a). 

12. Keligious scruples, however bond fide they may be, afford no 
justification for neglect or refusal to obey orders. An officer cannot 
(for example) plead conscientious scruples as justifying a refusal to> 
go into the trenches on a Sunday, or to pay marks of respect 
enjoined by superior authority to a religion different from his own, 

13. Desertion, Fraudulent Enlistment, and absence 'without leave. 
^ distinction is made by the Act between desertion and 
fraudulent enlistment. The latter, which is constituted a separate 
offence by s. 13, is dealt with hereafter. 

The criterion between desertion and absence without, leave is 
intention. The offence of desertion that is to say, of deserting 
or attempting to desert His Majesty's service (6) implies an* 
intention on the part of the offender either not to return to His- 
Majesty's service at all, or to escape some particular important 
service as mentioned in para. 16 ; and a soldier must not be 
charged with desertion, unless it appears that some such intention 
existed. Further, even assuming that he is charged with desertion, 
the court that tries him should not find him guilty of desertion, 
unless fully satisfied on the evidence that he has been guilty of 
desertion as above defined. On the other hand, absence without? 
leave may be described as such short absence, unaccompanied by 
disguise, concealment, or other suspicious circumstances, as occurs 
when a soldier does not return to his corps or duty at the proper 
time, but on returning is able to show that he did not intend to 
quit the service, or to evade the performance of some service so> 
important as to render the offence desertion. 

14. It is obvious that the evidence of intention to quit the 
service altogether may be so strong as to be irresistible, as, for 
instance, if a soldier is found in plain clothes on board a steamer 
starting for America, or is found crossing a river to the enemy ; 
while, on the other hand, the evidence is frequently such as to 
leave it extremely doubtful what the real intention of the man was,. 
Mere length of absence is, by itself, of little value as a test, for a 
soldier who has been entrapped into bad company through drink, or 
other causes, may be absent some time without any thought of 
becoming a deserter ; but in the case above put, of a soldier found 
on board a steamer starting for America, there could be no doubt 
of the intention, though he might only have been absent a few 
hours. 

15 ' -^ or can desertion invariably be judged by distance, for a 
soldier may absent himself without leave and depart to a very 
considerable distance, and yet the evidence of an intention to 
return may be clear ; whereas he may scarcely quit the camp or 
barrack yard, and the evidence of intention not to return (by the- 
assumption of a disguise, for example, and other circumstances) 
may be complete. 

le. A man who absents himself in a deliberate or clandestine 
manner, with the view of shirking some important service, thouglt 



(<z) See s. 9 of the Army Act, and note. 
(b) See s. 12 of the Army Act, and note. 



Desertion and Absence without Leave. 19 

lie may intend to return when the evasion of the service is accorn- Ch. III. 

plished, is liable to be convicted of desertion just as if an intention 

never to return had been proved against him. Thus if a man on 

the eve of the embarkation of his regiment for foreign service, or 

when called out to aid the civil power, conceals himself in barracks, 

the court will be quite justified in presuming an intention to escape 

the important service on which he was ordered and in convicting 

him of desertion. 

17. A man may be a deserter though his absence was in the first Desertion 
instance legal (e.g., being authorised by leave on furlough), the furlough*. 11 
criterion being the same in all cases, namely, the intention of not 
returning. It is clearly shown by the King's Regulations, and by 

the explanation on the furlough itself, that a soldier on furlough 
is still under orders, and that, if without leave, he quits the place 
to which he has permission to go, or if he disguises or conceals 
himself so that orders cannot reach him, or if he goes 011 board a 
ship about to sail for a distant port, he is liable to be tried and 
convicted of desertion though on furlough at the time. A soldier, 
for example, at Ipswich, who obtains a pass to Bristol, and during 
his leave when without permission to go to Liverpool is found 
there in civilian costume on board a ship about to sail for New 
York, may be tried for desertion. It would be for him to show 
that the absence without leave from Bristol proved against him. 
was innocent, and had nothing to do with desertion. 

18. If a soldier commits an act which is appireutly a prelude to, Attempt to 
or an attempt at, desertion, although no actual absence can be proved, d 

as if he is caught in the act of slipping past a sentry, or climbing 
I over a barrack wall in plain clothes, he may be charged with an 
attempt to desert. 

19. The fact that a soldier surrenders is not proof by itself that Soldier sur- 
he intended to return, even though he is in uniform at the time of himse"^ 8 
surrender. The prosecutor may not be able to prove where the man 

has been during his absence, but evidence that the military patrols 
had searched carefully in the neighbourhood of the barracks without 
finding him, would show that he must have gone to a distance or 
concealed himself. From this and other circumstances the court 
may infer that he surrendered because he could not effect his 
contemplated escape. 

20. A soldier charged with desertion may be found guilty of General 
attempting to desert or of being absent without leave ; and, on the af^ 131 "" 3 
other hand, a soldier charged with an attempt to desert may be desertiou,. 
found guilty of actual desertion or of being absent without leave (a). 

In any case of doubt as to whether one or the other offence has 
been committed, the court should find the prisoner guilty of the 
less offence. A soldier guilty of desertion forfeits all his prior 
service, and is liable to serve for the term of his original enlistment, 
reckoned from the date of his conviction, or of the order dispensing 
with his trial (6). 

21. As a general rule, a soldier quitting his corps and enlisting Fraudulent 
in another should not be charged with desertion, but with fraudulent enlistment, 
enlistment, for the very act of his enlisting in another corps (unless 

in an exceptional case) shows that he did not intend to leave His 
Majesty's service. On the other hand, if he does so for the purpose 

(a) See Army Act s 56 (3), (4). 

(6) Army Act, s. 79. As to court of inquiry, in case of absence without leave 
for twenty-one days, see s. 72 ; and as to procedure in case oi_ confession, of 
desertion or fraudulent enlistment, see s. 73. 

(M.L.) B 2 



20 



CRIMES AND SCALE OF PUNISHMENTS. 



Oh. III. 



Stealing 
and em- 
bezzlement 
when tried 
by court- 
martial. 



Stealing 
from a 
comrade. 



of avoiding a particular service e.g.^ service abroad or if during 
his absence he conducted himself so as to show that when he quitted 
he did not intend to return to the service, but changed his mind 
he is, as above pointed out, guilty of desertion, and may be tried 
accordingly. But as already observed, it will suffice, except in very 
special cases, to prefer a charge for fraudulent enlistment alone. 

22. Stealing and Embezzlement. Ordinary thefts from civilians 
are left by the Act to be dealt with by the civil courts, or they may 
be tried by court-martial under s. 41 as civil offences ; but the 
offence of stealing or embezzling the money or property of an 
officer or soldier or of any military institution has, in accordance 
with long-established practice, been made expressly punishable as 
a military offence (a). 

23. Stealing from a comrade is regarded as peculiarly disgraceful, 
seeing that in the daily routine of barrack life, soldiers must con- 
stantly leave their arms, accoutrements, or kits exposed, as well as 
private property, such as money, watches, pipes, &c., trusting to the 
honour of their comrades. When missing articles are private pro- 
perty, and are found in the possession of another, there is a strong 
presumption that they were stolen, especially if the accused absented 
himself, and is discovered to have pawned or sold them. But i 
must be recollected that an intention to steal is essential, and that 

-the mere taking of an article without that intent is not criminal. 
"So that if a soldier openly takes an article belonging to another, 
and returns it, or, though he absented himself, did not secrete the 
.article or make any attempt to sell or pawn it, then the pre- 
sumption is against his being guilty of stealing. It will often be 
desirable to obtain evidence as to any custom of borrowing which 
may have prevailed in a particular room, or as between the accused 
and the owner of the article or other comrades, and as to any other 
circumstance tending to show whether the accused might reason- 
ably have supposed that his taking the article would not be objected 
to. The restoration of an article does not, of course, by itself prove 
.'that the article was not stolen, but evidence of the above nature 
will often go far to show whether an article was in fact stolen or 
not. Again, the accused may show that he obtained the articles in 
.a bond fide transaction, or that he found them apparently without 
an owner, and without any name or mark on them by which the 
owner could be found. The fact of lost articles being found in the 
valise, or in the bed of a soldier, is not by itself proof that he 
stole the articles. They might have been put there unknown to 
him, perhaps intentionally by the real thief. A soldier should not 
in such a case be tried for stealing unless there are other circum- 
stances from which it might be inferred that the articles were in 
Jiis valise or bed with his knowledge. Evidence that a soldier was 
.a suspected thief, or that he had on previous occasions stolen other 
articles from other comrades, is not admissible to show that he 
'had anything to do with a particular theft ; but such facts might 
.be adduced as evidence that the taking of articles found in his 
possession was not innocent (6). The improper possession by one 
soldier of a comrade's necessaries, where there is no evidence of theft, 
is a different question : it is not an offence against the comrade, 



(a) Theft from a comrade will as a rule be tried by court-martial under s. 13 (4) 
of tha Army Act, K.R., para. 55(5 ; but under special circumstances, such as those 
in the case of Marks v. Froyley, L.R. [1898] 1 Q, B. 888, where the theft was alleged 
to have been committed immediately before a volunteer corps quitted the camp 
where they had been trained with regulars, may be tried by a civil court. 

(b) See c'h. VI, paras. 22-24. 



Drunkenness. 21 

but is an offence against military rules, and may, irrespectively of Ch. III. 
any fraudulent intent, be punished under s. 40. 

24. The offence of embezzlement under this Act is committed Embezzle- 
where one entrusted with the care or distribution of public or 
regimental money or property, and, being thus in lawful possession 

of it, appropriates it to the use of himself or of some person con- 
nected with him (a). A subordinate is frequently tempted to 
commit the offence, if he finds that his transactions are not 
regularly supervised, and that minor irregularities pass unnoticed. 
All officers, therefore, who have to do with the supervision of 
canteens or the accounts of pay sergeants or other non-com- 
missioned officers, should be most careful to see that the forms 
and regulations of the service are strictly and invariably observed. 
Nothing can be more unjust and inexcusable than for an officer, 
through indolence or carelessness in doing his own duty, to expose 
a soldier to temptation which may prove his ruin. 

25. Drunkenness. Drunkenness includes intoxication from the D j runken " 
effects of opium or any similar drug as well as from liquor. Under T 

the Army Act, an officer should be tried for the specific offence of 
drunkenness, whether on duty or not on duty, as the case may 
require, instead of being charged, as formerly, in the case of 
drunkenness not on duty, with conduct unbecoming the character 
of an officer and a gentleman. 

26. A non-commissioned officer, no less than a commissioned 
officer, may be tried by a court-martial for even a single act of 
drunkenness, whether committed on duty or not on duty. The 
commanding officer has, however, complete discretion whether to 
send the offence for trial or not, as the obligation of dealing 
summarily with a private soldier guilty of simple drunkenness 
under certain circumstances, does not extend to the case of a non- 
commissioned officer (6). 

27. A private soldier also can be tried for any act of drunken- jurisdiction 



ness, whether on duty or not on duty, by a court-martial under 

* rt 



s. 19 ; but the practical effect of this section is materially modified * 
by s. 46, which declares that the commanding officer shall deal drunken- 
summarily with the case of a soldier charged with drunkenness, ^of 
unless he has been guilty of drunkenness on not less than four so idier. 
occasions in the preceding 12 months, or unless the offence was 
committed on active service or on duty, or after the offender was 
warned for duty, or when the offender was by reason of drunkenness 
found unfit for duty. Although, therefore, under s. 19 courts- 
martial have complete jurisdiction to try and punish simple 
drunkenness, and this jurisdiction is not limited by s. 46, yet a com- 
manding officer will be guilty of a grave breach of duty and of an 
offence against the Act, if he disregards the directions in s. 46 
with respect to dealing summarily with simple drunkenness of a 
private soldier (c). 

28. In a military point of view, the offence of being " drunk on Drunken- 
duty " is considered in reference to the soldier being tit or not fit g*^j r on 
for duty. There cannot be any distinction such as drunk, or very duty. 
drunk, when on duty. Soldiers therefore are carefully inspected 
before being put on duty, so as to ascertain their fitness. If the 
superior, knowing a man to be drunk, out of good nature allowed 

(a) See s. 17 and note ; and as to the embezzlement generally, see ch. VII, para. 59 
As to orders for restitution of stolen or embezzled property, see s. 75. 

(6) Ss. 46, 183 (1). And see K.K. 499. 

(c) See K.R., paras. 508-513. The directions in s. 46 do not affect the right.-of the 
soldier to elect to be tried by a district court-martial, s. 4b (8). 



22 



CRIMES AND SCALE OF PUNISHMENTS 



duty. 



Drunken- 
ness of 
soldier not 
on duty. 



Ch. III. him to proceed with the duty, or, if through carelessness, he passed 
a man as sober when he was not sober, then it would be desirable 
as a rule to try the man for being drunk, and not for being drunk 
on duty. 

A soldier on the line of march is on duty from the beginning 
to the end of the march, and if drunk in his billet or halting place 
may, if necessary, be tried for being drunk on duty (a). 

Drunken- 29. Although a soldier found to be drunk when required for any 
soldier after duty for which he has been duly warned, can only be charged with 
being drunkenness, and not with drunkenness on duty, yet punishment] 

may be awarded as if it were drunkenness on duty. On the 
other hand, in ordinary routine circumstances, a soldier unex- 
pectedly called on to perform some duty, for which he has not 
been warned as (for example 1 ) if summoned from a canteen or 
from some public sports and found to be unlit for duty, should in 
practice be dealt with as for simple drunkenness. | 

30. In the offence of simple drunkenness there are practically 
various grades, for the purpose of the amount of punishment ; and 
evidence should be given as to the circumstances of the drunken- 
ness, and as to whether the drunken man was riotous or not, so 
that punishment may be apportioned accordingly. Nothing can 
justify a soldier striking or offering violence to a superior, and 
great care is therefore enjoined to be taken to avoid bringing 
drunken soldiers in contact with their superiors. Mere abusive 

'.and violent language used by a drunken man, as the result of 
-being taken into custody, should not be used as a ground for 
framing a charge of using threatening or insubordinate language 
to a superior officer. If a court-martial be required at all, discipline 
'will generally be upheld by merely bringing the man to trial either 
for drunkenness (if he is liable to be tried) or for an offence under 
s. 40, treating the language as in the nature of riotous conduct 
only, and to that extent aggravating the offence. Simple drunken- 1 
ness is as a rule sufficiently dealt with by the imposition of a! 
fine (b). 

31. Drunkenness often has to be considered by courts-martial 
not as an offence itself, but in relation to greater offences, which it 
accompanies. It is a principle of English law that drunkenness is 
no excuse for crime. But where intention is of the essence of the 
offence, drunkenness may justify a court-martial in awarding a less 
punishment than the offence would otherwise have deserved, or 
reduce the offence to one of a less serious character. Thus if an 
ordinarily steady respectful man commits himself when drunk by 
the use of insubordinate language, it may be clear that he did not 
really intend to be insubordinate ; and though the offence cannot 
be passed over, yet a more lenient punishment will meet the justice 
of the case, than if the same man had used the same language 
deliberately when sober. So, too, acts, which if done deliberately 
would show a wilful defiance of authority, may, if the man were 
drunk, be regarded as amounting only to the less offence of simple 
disobedience. So, too, if it should appear that a man absenting 
himself under circumstances which might ordinarily show an inten- 
tion of not returning, was drunk, the court would be justified in 
treating the absence as a mere drunken frolic, and finding the man, 
though charged with desertion, guilty of absence without leave. 
So again, a man so drunk as to be incapable of attending parade, 



Drunken- 
ness con- 
sidered in 
relation to 
other 
crimes. 



(a) See K.R., para. 510. 
(6) K.R. para. 497. 



Drunkenness. 23 

should be charged with drunkenness rather than with an offence Oh. 
under s. 15 (2) of the Act. 

32. The remaining sections of this part of the Act relating to Conduct to 
snilitary offences do not call for special notice in this Chapter, with ^Itary 6 
die exception of the proviso to the section (40) dealing with conduct discipline. 
to prejudice of good order and military discipline, which provides 

that no charge shall be made under that section, for an offence which 
is a specific offence under any other provision of the Act, and is not 
a civil offence ; although the conviction of a person so charged is not 
necessarily invalidated. Before, then, an offender is charged under 
this section, the convening officer must satisfy himself not only that 
the act, conduct, disorder, or neglect is to the prejudice of good order 
-and military discipline, but also that it is not any one of the offences 
-specifically punishable under the Act. If he fails to do so he will be 
responsible for contravening the Act, notwithstanding that the con- 
viction is not invalidated. Attempts to commit offences specified in 
the Army Act are not, with one or two exceptions, specifically made 
offences, and therefore can be tried under this section. But civil 
offences, e.ff., frauds, should not be tried under this section. 

33. An important distinction is made by the Act, in that certain Offences 
offences are punishable more severely when committed on active ?. mi " d 
service (a) than at other times. Instances of this distinction will service." 
be found in sections 6, 8, 9, and elsewhere. A sentinel, for example, 

found asleep or drunk on his post, while on active service, would be 
liable to suffer death if the character and circumstances of the 
offence were sufficiently grave, while if he were not on active service 
he could at the utmost be sentenced to imprisonment (b). Suppos- 
ing the evidence on the trial to prove that an offence charged as 
having been committed on active service was committed not on 
active service, the offender may be found guilty of the latter offence 
only, and be sentenced accordingly to the less punishment (c). 

34. Jurisdiction is given by s. 41 to courts-martial to try offences 
ordinary civil offences, from murder and treason downwards, when punishable 
committed by persons subject to military law. The limitations on i^ or( 
&he exercise of this jurisdiction and the other provisions of the 
section are explained in Chapter vii (d) ; which also contains for 

the information of officers who may have to try such offences, a short 
statement of the laws relating to them. 

35. Having laid down the offences, the Act enacts (s. 44) a scale g C ale of 
of punishment for officers and soldiers respectively. With two punish- 
oxceptions, each particular offence laid down in the Act has a n 
maximum punishment assigned to it ; and then, by s. 44, provision 

ts made enabling a court-martial to award a less punishment. If, 
for example, the maximum punishment assigned to an offence is 
penal servitude, either imprisonment or any one of the punishments 
lower in the scale for officers and soldiers respectively can be 
awarded in its place. The punishments named in the Act for 
ach particular offence are maximum punishments, and a maximum 
punishment is only intended to be imposed when the offence com- 
mitted is the worst of its class, and is committed by an habitual 
offender, or is committed under circumstances which require an 
example to be made. The two exceptions from the above rule are 
the offence of behaving in a scandalous manner unbecoming the 
character of an officer and a gentleman, in which case the only 

(a) For the definition of "active service," see s. 189 (1). 
(6) Army Act, s. 6 (1) (k). 

(c) Army Act, s. 56 (5). 

(d) See also note to s. 41. 



CRIMES AND SCALE OF PUNISHMENTS. 



Pi-nish- 
iiuiit of 
detention 



Ch. III. punishment is cashiering () ; and the civil offence of murder in, 
which case death is the only punishment. 

36. The scale of punishments received an important modification 
in 1906, when a new punishment" detention" was introduced 
into it, to rank immediately below imprisonment. The object of 
the change is explained in the preamble to s. 4 of the Army 
(Annual) Act, 1906, which is as follows : " For the purpose of 
preventing soldiers convicted of offences against discipline under 
the Army Act, and not discharged with ignominy, from being 
subjected to the stigma attaching to imprisonment, the following 
amendments shall be made in the Army Act." A court-martial 
ought not, therefore, to sentence to imprisonment a soldier convicted 
of a purely military offence, and if the court imposes imprisonment 
in contravention of this principle, the confirming officer should, 
except under very special circumstances, commute the sentence to a 
sentence of detention. If the sentence is imprisonment and 
discharge with ignominy, the confirming officer, when commuting 
to detention, must also remit the discharge with ignominy, as such 
a discharge cannot accompany a sentence of detention (b). 

37. The Army Act, as a substitute for the foi'merly existing 
power of inflicting corporal punishment, provides (s. 44, proviso (5) ) 
that a court-martial may award for any offence committed by a 
soldier on active service such field punishment, other than flogging, 
as may be directed by rules made by a Secretary of State. The 
rules made in pursuance of the above enactment must be re- 
ferred to for further details on this subject, (c). 

38. In conclusion must be noticed the power of His Majesty,, 
under s. 69, to make Articles of War for the better government 
of officers and soldiers. Such Articles may be made applicable to 
officers and soldiers at home or abroad, and must be judicially 
noticed by all judges, and in all courts. The penalty of death OF 
penal servitude cannot be imposed by an Article of War, except 
for an offence expressly made liable to such punishment by the Act 
itself ; nor can an Article of War render any offence punishable 
under the Act liable to be punished in a manner which does not 
accord with the provisions of the Act. The enumeration ofi 
offences in the Act is so complete, that the necessity for the 
exercise of the power of making Articles of War for the purpose oS 
creating offences would appear unlikely to arise. 



Piel.i 
punish- 
ment,. 



Articles of 
War. 



(a) Army Act, s. 16. 

(b) See generally K.R. para. 583. 

(c) The rules are printed below, p. 598. 

The term " field punishment " has been substituted by the Army (Annual) Act, 
1907, s. 1U, for the term "summary punishment," and that enactment also extended 
the power to award such punishment to the case of any offence on active 
service, the power having been previously limited to aggravated offences of 
drunkenness, offences of disgraceful conduct, and offences punishable with death 
or penal servitude. 



25 



CHAPTER IV. 



ARREST: INVESTIGATION BY COMMANDING OFFICER: 
SUMMARY POWER OF COMMANDING OFFICER: 
PROVOST-MARSHAL. 

(i.) Arrest. 

1. Whenever any person subject to military law is charged with Military 
an offence, he may be taken into military custody, which in the custody o-j 
case of an officer means arrest, and in the case of a private soldier ^harg'ed 
means confinement. Non-commissioned officers are, as a rule, put with 

in arrest, and not in confinement. Persons subject to military law offenc *- 
as officers under s. 175 will be put in arrest ; persons subject to 
military law as soldiers under s. 176 will usually be put in 
confinement (a). 

2. An officer is put in arrest either directly by the officer who Arrest i 
orders it, or more generally through the medium of a staff officer, officer - 
i.e., by the adjutant or a field officer of the regiment when the 
arrest is ordered by the commanding officer, and by an officer of 

the general staff when the arrest is ordered by a superior officer, 
and not through the channel of the commanding officer. The 
order may be verbal or written, the latter as being more formal 
being the preferable mode, except where the offence is committed in 
the presence of the commanding or superior officer. On being put 
in arrest, an officer is deprived of his sword. 

3. Ihe arrest may be either close or open, according to the Arrest ma? 
direction of the officer who ordered it. The King's Regulations be close r 
direct that an officer in close arrest shall not leave his quarters or open ' 
tent except to take exercise under supervision ; but an officer in 

open arrest may be permitted to take exercise at stated periods 
within certain limits, which are usually the precincts of the regi- 
mental barracks or camp ; he must not, however, appear out of 
uniform, nor at mess, nor at any place of amusement or public 
resort, such, for instance, as a billiard room, nor must he wear sash, 
sword, belts, or spurs (6). An officer placed under arrest should 
alwa\s be infoimed in writing of the nature of the arrest, which 
will be governed by the circumstances of the case ; and any change 
in the nature of the arrest should be notified in writing to 
him. An officer may, if the circumstances of the case require 
it, be placed in the charge of a guard, piquet, patrol, or sentry, 
or, if on active service abroad, in the custody of a provost- 
marshal (c). An officer under arrest may be ordered or permitted 
to attend as witness before a court-martial, or before a civil court. 

4. As a rule, a commanding officer will not place an officer under Arrest 
arrest without investigation of the complaint or the circumstances usuaify pre- 
tending to criminate him ; though cases may occur in which it ^yef 
would be necessary to do so. It is the duty of the commanding tion. 
officer to report each case of arrest without unnecessary delay to 

| the proper superior military authority (d). 

(a) Army Act. a. 45 (1), (2). K.E., paras. 46S-473. 

(b) K.h., paras. 466, 467. 

(c) K.E., para. 465. 

(d) K.R., para. 469. See for summarv of the provisions of the Act and rules for 
preventing unnecessary detention in arrest, 3. 45 of the Act, and note. 



2G 



ARREST : POWER OF COMMANDING OFFICER. 



Ch. IV. 

Arrest of 
senior by 
order of 
junior 
officer in 
certain cir- 
cumstances. 

Case of 
Lt.-CoI. H. 
in 1819. 



Officer 
under 
arrest has 
no right to 
demand 
court- 
martial. 



Release of 
officer. 



No privilege 
of Parlia- 
ment from 
arrest. 

Non-com- 
missioned 
officers. 



5. It is expressly laid down by s. 45 (3) of the Army Act, that 
a junior officer may order the arrest of a senior (even of a different 
corps or branch of the service), if engaged in any quarrel, fray, or 
disorder; and in the case of any glaring impropriety, such as 
drunkenness on parade, it may become the duty of a junior to 
take the same extreme measure. 

6. This was clearly shown by the order on a court-martial tor 
the trial of Brevet Lieut. -Col. H. at Plymouth, in 1819. Lieut. -Col. 
H. appeared at a regimental parade in a state of intoxication, and 
was put under arrest by Captain E., one of his junior officers. He 
was tried " for being drunk on duty when under arms inspecting the 
" guards and piquet of the Regiment of Foot," and sentenced 
to & be cashiered ; the court observing that the occurrence of a com- 
manding officer being put under arrest while in the actual command 
of a regimental parade was unprecedented in their experience ; and 
that the circumstances detailed in evidence were not of that im- 
perious urgency as to have called for the immediate adoption of 
so very strong a measure. The Prince Regent, however, in con- 
firming the finding and sentence, took occasion to signify that he 
could not allow the observations of the court to go forth to the 
army without explaining " that the court are in error when they 
" suppose that circumstances may not occur even upon a parade to 
" justify a junior officer in taking upon himself the strong respon- 
" sibility of placing his commander in arrest ; such a measure must 
"rest alone upon the responsibility of the officer who adopts it, 
" and there are cases wherein the discipline and welfare of the 
" service require that it should be assumed. In the present 
" instance the sentence of the court appears to afford a full justifi- 
" cation of Captain E.'s conduct in the placing of Lieut.-Col. H. in 
"arrest, though it would have been more regular if that officer 
"had continued to rest upon his own responsibility, without 
" calling a meeting of his brother officers to support it by their 
" opinions." 

7. The King's Regulations point out that an officer put under 
arrest has no right to demand a court-martial, nor, after he has 
been released by proper authority, to persist in considering himself 
under arrest, or to refuse to return to his duty. If he conceives, 
himself wronged by arrest, his remedy is a complaint in manner* 
prescribed by the Army Act (a). 

8. The release of an officer under arrest may be ordered by the 
officer who imposed the arrest, or the superior to whom it may 
have been reported ; but, as a rule, the release is not to be 
ordered without the sanction of the highest authority to whom 
the case may have been referred (6). 

9. Peers and Members of the House of Commons are not 
privileged from arrest ; but the fact and cause of the arrest should 
always be communicated to the Lord Chancellor, or to the Speaker, 
as the case may be. 

10. The rules which govern the close and open arrest of officers 
apply also to non-commissioned officers. A non-commissioned 
officer charged with a serious offence will, as a rule, be placed 
under arrest forthwith ; but in case of doubt as to the com- 
mission of the offence, the arrest may be delayed ; and if the 
offence is not serious, it may be disposed of without previous 
arrest (c). 

(a) K.R., para. 470, Army Act, s. 42 ; see also K.R. para. 127. 

(l>) K.R., para. 468. 

(c) See rara. 3 above. K.R.. r>ara. 471. 



(b) K.R., para. 468.' 

(c) See para. 3 above. K.R., para. 471. 



Arrest. 27 

11. Private soldiers taken into military custody (not under Ch. IV. 
sentence) are confined in charge of a guard, piquet, patrol, or Con ~ _ 

! sentry, or of a provost-marshal, or are placed in open arrest (a) ; m ent of 
but this does not apply to minor offences, such as absence from P[?^ 
tattoo and other roll-calls, overstaying a pass, and other slight s 

I irregularities in quarters, which are to be disposed of by the 
company, &c., commander, or commanding officer, without the 
offender being previously lodged in the guard-room. In permanent 
barracks soldiers confined under charge of a guard will usually be 

| detained in the guard detention room (b). They are never to be 
kept in irons, except when it is necessary for safe custody, or to 
prevent violence. A soldier against whom a charge for a minor 

I offence is pending, is not treattd as in arrest, and attends all parades, 
though he will not be detailed for duty. Where troops are in billets 
or on the line of march, or accommodation for the confinement of 
soldiers is otherwise not available, a soldier in military custody 
(not under sentence), may be committed by order of his commanding 
officer, for a period not exceeding seven days, to any civil prison or 

I lock-up (c). An offender, while in close arrest, is not required 
to perform any military duty further than may be necessary 
to relieve him from the care of any cash, stores, &c., for which 
he is responsible ; nor is he permitted to bear arms, except by order 
of his commanding officer in case of emergency or on the line of 
march ; and if by error he is ordered to perform any duty, his 
offence is not thereby condoned (d). On board ship he should, if 
not in close confinement, take his regular turn of watch, although 
he should not be placed on guard (e). 

A man may be confined while awaiting trial by court-martial 

or the promulgation of the finding and sentence of the court-martial 

I which tried him, and may be so confined in a branch detention 

I barrack ( / ). A man when confined can only be released by a com- 
petent authority e.g., if confined in a regimental guard-room he 
can only be released by the authority of the commanding officer 
of the regiment, and if in a garrison guard-room by the authority 
of the officer commanding the garrison. 

12. The offence of breaking or attempting to break arrest or Breaking 
confinement renders an officer liable to be cashiered, and a soldier arrest, 
iiable to imprisonment^). An offender confined to quarters, and 
quitting them for any purpose whatever, however short the time 

of his absence, is strictly speaking guilty of breaking his arrest. 
The gravity of the offence will depend mainly on whether the 
circumstances do or do not disclose deliberation, and intentional 
defiance of authority. 

13. The offences of releasing without proper authority a person improper 
in custody, and of suffering a person in custody to escape, are 
punishable in some cases more severely ; an offender who acts wilfully 

being liable to penal servitude (K). It will be remembered that here, 
as elsewhere, the punishments specified are maximum punishments. 

14. An officer or non-commissioned officer commanding a guard, Receiving 
or a provost-marshal, cannot refuse to receive or keep any person a ' 



I 



persons 
into cus- 



(rc) K.R. para. 473. tody. 

(6) K.R. paras. 473-476. As to soldiers in a state of drunkenness, see para. 478. 

(c) K.R. para. 476. For form of order, see Form Q in App. Ill to Rules of 
Procedure. As to the duties of N.C. officers in relation to the confinement of 
private soldiers, see para. 477. 

(d) K R, para. 482. 
() K.R. para. 1612. 

| (/) K.R. para. 648, and sec Form R in App. Ill to Rules. 
(g) Army Act, s. 22. As to escape, see note to that section. 
(A) Army Act, s. 20. 



28 ARREST : POWER OF COMMANDING OFFICER. 

Ch. IV. committed to his custody by an officer or non-commissioned officer j 
but the committing officer or non-commissioned officer must, afe 
the time of committal, or within 24 hours after, deliver a written 
account, signed by himself, of the offence with which the person 
committed is charged (a). 

Account of 15. This " account " should be a concise summary of the evidence 
offence. oll w hich the accused was committed into custody, and should | 
contain, without any unnecessary detail, all the material points of 
the offence. If the account states that the accused was drunk, or 
absented himself, and a witness subsequently adds before an 
investigating officer that the accused struck a non-commissioned 
officer, or used threatening language, the presumption is that the. 
conduct of the accused had not at the time been thought sufficiently- 
serious to amount to an offence, and to be entered in the account. 
As a rule, then, the investigating officer would treat the fresh 
evidence merely as showing the nature and degree of the offence 
originally deposed to ; but in some cases he may consider it advis- 
able to make this new evidence the substance of a specific charge. 
Omission to 16. The omission of the committing officer to deliver the " charge " | 
account. ( as the " account " is generally termed) will not justify the com- 
mander of the guard or provost-marshal in rejecting, much less in 
releasing, the accused. His proper course, in the event of such 
omission, is to take steps for procuring the "charge," or to reports 
to the officer to whom his guard report is furnished that no 
" charge " has been delivered. If the " charge " or evidence sufficient! 
to justify the retention in custody of the accused is not forthcoming 
within 48 hours after committal, the latter officer will order the 
release of the accused (6). 

Duty of 17. It is the duty of the commander of the guard (immediately 

commander O n the relief of the guard) to report in writing to the officer to 
rlifrlrtnl whom he is ordered to report, the name and offence of the accused, 

* rt" 1 11 1 1 \ 

and offence and the name and rank of the committing officer ; and he should 
of accused. i nc i u( j e j n his report the " account " above mentioned, or, if it has 
not been delivered, should state the fact. If he fails to make this 
report within 24 hours after the accused was committed, or where 
he is relieved from his guard within that period, then immediately 
on being so relieved, he himself commits an offence. The report 
will, as a rule, be made to his commanding officer (c). 

(ii) Investigation by Commanding Officer. 

Investiga- is. The object of the above report is to enable the commanding 
command- officer of the accused, without delay, to institute an investigation of 
ing officer, the case. There is some difference in the procedure in the case of 

an officer and in that of a soldier. 

In case of 19. The case of an officer may be referred to a court of inquiry, 
officer. an( j nee( j no^ unless the officer requires it, be formally investi- 
gated before his commanding officer (d) ; but the commanding 
officer, in the case of an officer as well as of a soldier, is made 
by s. 46 of the Army Act responsible for dismissing the charge, if 
it ought not to be proceeded with ; and, if it ought to be proceeded 
with, for taking the proper steps to bring the offender before a 
court-martial. 

(a) Army Act, s. 45 (4). 
(6) K.K. para. 463. 

(c) Army Act, s. 21 (3), and K.R., paras. 463, 464. Bee for summary of the pro- 
visions of the Act, and rules for preventing unnecessary prolongation of confinement. 
8. 45 of the Act, and note. 

(d) Kule 8 and note. 



Investigation by Commanding Officer. 29 

20. A case of a non-commissioned officer or soldier will, in the first Ch. IV. 
-instance, be investigated by the company, &c., commander. Where 

I the accused is a private, this officer, if he decides that the case is a Jo^"* ot 

'minor offence or a case of drunkenness, or of absence without leave, 

with which he can deal under the powers possessed by, or delegated 

to, him under the King's Regulations (a), will either dispose of the 

ease himself or leave it to his commanding officer to deal with. The 

case of a non-commissioned officer must always be left to be dealt with 

I by the commanding officer, except that the company, &c., commander 

Ihas power to admonish (but not reprimand) a non-commissioned 
officer not above the rank of corporal (b). A case left to be dealt with 
by a commanding officer must be investigated by the commanding 
officer himself. He can dismiss the charge, or remand the case 
for trial by court-martial ; can apply to superior military authority ; 
or, in the case of a private soldier, can award punishment summarily, 
subject to the right of the soldier, in any case where the award 
or finding involves forfeiture of pay, and in any other case where 
the commanding officer proposes to deal with the offence otherwise 
than by awarding a minor punishment, to elect to be tried by a 
district court-martial, and subject to the limitations imposed on the 
discretion of commanding officers by the King's Regulations (<?). A 
warrant officer, or a person subject to military law as a soldier, but 
not belonging to His Majesty's forces, cannot be summarily punished, 
and a non-commissioned officer, though not legally exempt, is not 
allowed by the King's Regulations to be summarily punished (d.) 

21. This duty of investigation by the commanding officer requires Duty of 
deliberation, and the exercise of temper and judgment, in the ^,f t e j n g 0n " 
interest alike of discipline and of justice to the accused. The investiga- 
Investigation usually takes place in the morning, and must be con- tion - 
ducted in the presence of the accused (e) ; but, in the case of 
drunkenness, an offender should never be brought up till he is 
perfectly sober (/). 

22. After the nature of the offence charged has been made Examina- 
known to the accused, the witnesses present on the spot who depose tion of 

I to the facts for which he has been confined are examined. In every * 
case where the commanding officer has power to deal with the case 
'summarily, the accused has a right to demand that the witnesses 
against him be sworn ; and he will also have full liberty of cross- 
examination (g). 

23. The commanding officer, after hearing what is urged against Decision of 
the accused, will, if he is of opinion that no military offence at all, eommand- 
or no offence requiring notice, has been made out, at once dismiss "' g 

the charge (h). Otherwise, he must ask the accused what he has 
to say in his defence, and whether he has any witnesses to call, and 
will give him full opportunity both of making a statement and of 
supporting it by evidence, including the evidence of the accused 
himself and that of his wife(i'). The commanding officer will then 
consider whether to dismiss the case or to deal summarily with 
the case himself, or to adjourn the case for the purpose of having 

(a) K.R., paras. 484 and 501. 

(6) K.R.. paras. 484 and 499. 

(c) Army Act, s. 46. Rules 4, 7. K.R., paras. 483-491 ; below pira. 23. 

(a!) Army Act, s. 182 (1); 184 (2). K.R., para. 499: and as to summary punish- 
ments, see below, para. 31, c. 

(e) R-.,le3(A). 

f (/) See K.R., para. 478, which suggests the lapse of 24 hours before he is 
tbrought up. 

<#) Army Act, s. 43 (6) and nots ; Rule 3 (A), (B) anl note ; 5.1'. also as to the 
evidence of the accused himself and of his wife. 

(h) Rule 4 (A). 

<t) Rule 3 (A) and not*. 



30 



ARREST : POWER OF COMMANDING OFFICER. 



IV 

' 



Caution as 
to expres- 



Eight of 
soldier to 

martia C i Urt ~ 



Adjourn- 
ment for 
taking a 



Mode of 

taking 

summary. 



the evidence reduced to writing, with a view to having the case 
tried by court-martial (a). First and less serious offences of the 
class which he has authority under the King's Regulations to 
dispose of summarily, without reference to superior authority 
should, as a rule, be so dealt with, subject to the soldier's right 
to elect before the award to be tried by a district court-rnartiaL 
If the offence does not belong to the above class, and the com- 
manding officer desires to dispose of it summarily, he must refer 
to superior authority by letter stating briefly the circumstances, 
and accompanied by the conduct sheets of the accused. A I 
charge for any offence, of whatever class, may, if the commanding 
officer thinks fit, be referred to superior authority, with an applica- 
tion for a district court-martial ('>). 

24- During the investigation, the officer conducting it must be 
careful not to let fall, before he disposes of the case, any expression 
of opinion as to the guilt of the accused, or one which might prejudice 
him at a subsequent trial (c). It frequently happens that officers? 
who have been present at the investigation are detailed as members 
of the court convened in consequence of it ; therefore, nothing 
should be said or done which might, though unconsciously, bias 
their judgment beforehand. 

25 - ^ tQe commanding officer proposes to deal with the case 
summarily, otherwise than by awarding a minor punishment, he 
must ask "the soldier whether he desires to be dealt with summarily, 
or to be tried by a district court martial ; and the soldier may, if 
he chooses, thereupon elect to be tried by a district court-martial. 
Save as aforesaid, a soldier has no right to claim a court-martial, 
except that, where the commanding officer has omitted to put the! 
proper question to him, the soldier has a subsequent opportunity,! 
as provided by Eule 7, of making the claim (d). 

26< Where a commanding officer adjourns the case for the 
purpose of having the evidence reduced to writing, the evidence- 
given by any witnesses before him must be taken down in writing 
in the presence of the accused (e) ; the accused must be allowed 
to cross-examine within reasonable limits, especially if there 
is any variance between the evidence as taken down and that 
given on the prior investigation. Any statement made by the 
accused, which is material to his defence, will also be added in 
writing (/), but the accused must be warned that this will be 
done. 

27. The evidence and statement, if any (called the summary of 
evidence), must be taken down in the presence of the commanding 
officer hi ms elf } or of some officer deputed by him (g). Great care 
is necessary in the performance of this duty ; the exact words used 
by the witness or accused should as nearly as possible be taken 
down, and the summary should be free from any expression of 
opinion or conjectures, and from matter not bearing on the case. 
The difference not infrequently observable between the statements 
recorded in the summary of evidence and the evidence given before 
a court-martial may often be traced rather to the hasty or carele*.- 



(a) Eule 4 (B). 

(b) Eule 4 ; K.E. paras. 487-489. 

(c) K.E., para 483. 

(rf) Army Act, s. 46 (8) ; Eule 7. 

(K) The accused and his wife, even if they have given evidence before the com- 
manding officer, cannot be compelled to repeat their evidence unless the accused 
makes an application to that effect. See note to Rule 4 (C) (E). 

(/) Rule 4 (E). 

(y) Eule 4 (C). 



Power of Commanding Officer to Punish Soldiers. 31 

preparation of the summary, than to any prevarication or desire lh - IV * 
to mislead on the part of the witnesses. 

28. When the summary of evidence has been taken, the Remand of 
commanding officer must consider it and determine whether or ^Thy f 
not to remand the accused for trial by court-martial. It may be court-" 
that on reading the evidence the commanding officer will come to martial, 
the conclusion that the case is one which ought to be disposed of 
summarily lu such a case, unless the accused has himself elected 

to be tried by district court-martial, the commanding officer will 
either rehear the case and dispose of ft summarily, or, if he is 
not competent to do so without leave from superior military 
authority, refer the case to the proper authority. In any other 
case the* commanding officer will remand the accused for trial by 
. court-martial (a). If a court-martial is ordered or applied for, the 
I accused can be kept in arrest or confinement until the charge is 
disposed of. It is the duty' of the commanding officer on reading 
the summary of evidence to note whether or not the evidence 
taken down in the summary corresponds with the evidence given 
at the inquiry before him. 

29. The summary of evidence, like the depositions before justices, Use of 
may be used for certain limited purposes at the trial, and also ^ n ^^ cet 
for the purpose of giving to the accused notice of the charge he 

will have to meet, and to the convening officer and president of the 
court notice of the case to be tried. Either the summary itself or 
a true copy must be laid before the court-martial before whom the 

I ace used is 'tried ; and a copy must be given gratis to the accused at 
the time he is warned for trial (6). 

30. An application for a court-martial should usually be disposed Convening 
of at once ; but if the convening officer detects matter showing c ' 
culpable neglect or improper conduct on the part of the superiors 

of the accused, he may delay assembling a court for the purpose of 
making inquiry. In most instances, the offences referred to him 
by the commanding officer in pursuance of the King's Regulations (c) 
may well be disposed of by an inferior court, unless circumstances 
render it necessary in the interests of discipline to deal with them 
more severely. The officer who convenes a court-martial is respon- 
sible for the correctness of the charges (d), and will, if necessary, 
revise them after considering the evidence as shown in the summary. 
The charge sheet containing the charges as approved by the officer 
convening the court-martial will be sent to the president, as well 
as the summary of evidence, or a true copy thereof, and will be 
laid by him be'fore the court martial (e). The prosecutor should 
have a copy of the charge sheet and summary, or at least should 
have access to them ( /). 

(iii.) Summary power of Commanding Officer. 

31. The power of the commanding officer to punish summarily a Power of 
soldier is twofold : first, the power under the Army Act to award ^"aT' 

I detention, deduction from ordinary pay, and in the case of to deal 
drunkenness a fine not exceeding 10s., and, in case of offences com- ^^ 
mitted on active service, field punishment, and forfeiture of pay, sioned 

officer or 

(a) Rule 5 (A). 

(6) Rules 5 (C) and 14 (B). As to use of summary, see note to Rule 8. 

(c) K.R.. rara. 487. 

(d) Rule 17 (A). 
(e) Rule 17 (E). 

(/; As to giving notice of the charges to the accused, see below ch. V, para. 32. 



32 



ARREST : POWER OF COMMANDING OFFICES. 



Drunken- 
ness. 



Absence 
without 
leave 



Forfeiture 
(, of pay. 



Ch. IT. for not more than 28 days (a) ; and, secondly, the power under I 
the King's Regulations to award the minor punishments of 
confinement to barracks, or extra guards or piquets, subject and 
according to the provisions of para. 460, to which reference musti 
be made. The detention must not exceed fourteen days, except | 
in the case of absence without leave exceeding seven days, in 
which case it may extend to the number of days of absence, not 
exceeding twenty-one (b). Under the terms of the Army Act 
(s. 46 (2) (d)) a non-commissioned officer cannot be awarded field 
punishment or forfeiture of pay by his commanding officer, and 
under the King's Regulations a non-commissioned officer is not to be 
subjected to summary or minor punishments by his commanding 
officer, but he may be reprimanded or ordered to revert from an 
acting or lance rank to his permanent grade (c), or may be removed 
from an appointment to his permanent grade, but this power of 
removal, if the non-commissioned officer's permanent rank is higher 
than that of corporal, is not to be exercised without reference to 
superior authority (d). 

32. Drunkenness and absence without leave are the two offences 
which require to be most frequently dealt with by the commanding 
officer ; indeed, the case of drunkenness of a soldier (not being an 
offence of drunkenness committed under the special circumstances 
mentioned in subs. (3) of s. 46 of the Army Act : see ch. iii, para 27) 
must be so dealt with, unless the soldier has elected to be tried by 
a district court-martial (e). This obligation does not apply to a 
non-commissioned officer charged with drunkenness ( /). 

33. In the case of absence without leave, the commanding officer 
may, as already observed, award detention not exceeding | 
twenty-one days ; but in determining his award he is to have 
regard to the number of days of absence, and though he may 
give 168 hours' detention for absence during any period not* 
exceeding seven days, yet it must always be remembered that for! 
absence exceeding seven days the term awarded cannot exceed the 
number of days of absence. For example, suppose Private A.B. 
has been absent without leave, and the commanding officer thinks 
it expedient to award detention, then the detention may be, if I 
the man has been absent three days, for any number of hours 
up to 168 ; if he has been absent eight daj r s, for any number of 
hours up to 168, or for eight days ; if he has been absent eighteen 
days, for any number of hours up to 168, or any number of days 
from eight to eighteen (g). 

34. Under s. 138 of the Army Act and the Royal (Pay) Warrant, 
pay is forfeited, as a matter of course, for everv day of absence 
either on desertion, or without leave ; also for every day of imprison- 
ment, detention, or field punishment, under sentence, or in cus- 
tody under any charge resulting in conviction by a court-martial 
or civil court, or under a charge of absence without leave, resulting 
in an award of detention, or neld punishment, by his cum mending 
officer ; also for every day in hospital on account of sickness, certi- 
fied to have been caused by an offence committed by him. In the 



(a) Army Act, ss. 46, 138 ; K.R., para. 493. 

(b) Army Act, s. 46 (2) (a), (4), (5) ; Rule 6, and see note. 

(c) K.R., para. 499. 

(d) K.K., para. 302. 

(e) Army Act, s. 4fi (3) ; K..E., paras. 508-513. 
(/) Army Act, s. 183 (1). 

(g) In dealing summarily with cases of absence, the commanding officer must 
take into consideration all the circumstances. K.R., para. S02. As to notifying in 
Hegimental Orders the names of men absent without leave, see para. 503. 



Provost Marshal. 33 

case, therefore, of absence without leave, as the pay is forfeited as Ch. IV. 

a matter of course, the officer dealing with the case should make 

no award, but only inform the soldier of the number of days' 

pay forfeited (a) ; such a forfeiture can only be remitted under 

any provisions to that effect which may be contained in the 

Royal Warrant, or (so far as the Royal Warrant does not provide 

to the contrary) by the Secretary of State (6). 

The commanding officer may, where a soldier is not tried by 
court-martial, order stoppage of his pay to make compensation for 
any expenses caused by him, or for any loss of or damage or destruc- 
' tion done by him to any arms, equipment, military necessaries, and 
so forth, or by his injuring any buildings or property (e) ; and may 
likewise order the stoppage of the amount of any fine awarded by 
himself (d). 

35. There is no appeal from the award of the commanding officer, Right of 
'but, as has been already mentioned, the soldier may, in certain Demand 
cases, instead of submitting to the jurisdiction of his commanding district 
officer, claim to be tried by a district court-martial (e). court- 

martial. 

36. When once an offender has been punished by his command- No trial 
ing officer he cannot be tried by a court-martial for the same f s iin\eiit")y 
-offence ; and similarly he cannot be punished by his commanding command- 
officer or subjected by him to any stoppage of pay for any offence of in s officer, 
which he has been acquitted or convicted by a court-martial or 

by a competent civil court (/). When a commanding officer has once 
awarded punishment for an offence, he cannot afterwards increase 
it (<7). It is considered that a commanding officer's award is com- 
plete when the man has left his presence. 

37. A commanding officer will delegate to company, &c., com- Delegation 
manders the power of awarding minor punishments not exceeding of m 1 ".f r d 1 ' y 
seven days' confinement to barracks for any offences which he j n g officer, 
himself may deal with (/?). 

38. The commanding officer of a detachment has, unless restricted Command- 
by superior authority, the same power of awarding summary punish- "f^ 
ment as the commanding officer of a corps (i). ment. 

(iv) Provost- Marshal. 

d 39. In case of offences committed abroad, whether on active p rovost . 

(service or not, arrests will often be made by the provost-marshal marshal, 
or his assistants, who may be appointed by a general officer com- 
manding a body of forces abroad. A provost-marshal cannot, as 
was formerly the case, inflict any punishment of his own 
authority (k}. He can only arrest and detain for trial persons 

(a) K.R., para. 495. 

(ti) Army Act, ss. 138, 139; Pay Warrant, art. 902. Absence as a prisoner of 
war no longer involves forfeiture of pay, unless a court of enquiry (K. R. 675) subse- 
quently find that the soldier was taken prisoner through his own fault or mis- 
conduct ; and even so, the forfeiture only attaches to any balance of pay unissued : 
(Pay Warrant, art. 954). 

(c) Army Act, s. 138 (4). 

(d) Army Act, s. 138 (7). 

(e) Army Act, s. 46 (8) ; above, para. 20. 
(/) Army Act, s. 46 (7). 

[J (g) Rule 6 (B). As to the power of the Army Councilor officer not below the rank of 
brigadier-general to cancel an award, or reduce the punishment, see K.R., para. 507. 
(A) K.R., para. 484, 501. 
(i) K.R., paras. 456, 457, and see para. 458. 

(k) The provost-marshal was, until 1829, appointed by the general, and exercised 
his powers without any statutory authority, and the appointment could only be 
justified legally as being made under the Sovereign's prerogative to govern the 
army in time of war in places out of his dominions. There must have been con- 
siderable doubt as to the existence of the power, and consequently as to the legality 
-of the provost-marshal's acts, and a correspondence took place between the Duke of 
"Wellington and the Government on the subject during the Peninsular War. (See 
(M.L.) C 



31 Discipline on Eowd II.M.'s Mips. 

Ch. IV. subject to military law committing offences, and carry into execu- 
tion punishments to be inflicted in pursuance of a court-martial. 
A provost-marshal and his assistants have also as respects a soldier 
in his or their custody uiuh T.uviu^ h'eld punishment, the same! 
powers as the governor of a military prison (a). 

(v.) Discipline on Board II.Af.'s Ships. 

Discipline 40. The discipline of troops embarked as passengers on board 
H l M ; s rd an y f -^ s ^ a J est . v 8 s hips is regulated by an Order in Council of 
ships'. 3 February, 1882 (/;). 

Clode, Mil. Forces, ii. p. 662.) In 1829 the Article of War respecting the provost- 
marshal was inserted, and gave legal recognition and if it was within the powers- 
of the Articles legal sanction to the appointment and powers of the provosi,- 
marslial. (Sec Clode, Military and Martial Law, pp. 181-3.) The above powers were 
curtailed in 1879 by the Act of that year. For appointment ami duties, see K.K., 
para. 59ft 

(a) Army Act, s. "J, as amended by the Army (Annual) Act, 190", s. 10. As tof 
garrison and regimental provost-serjeants, see K.K. 6lil, t5''4. 
' (b) Sec the Order in Council printed below, p. 005. 



35 



CHAPTER V. 

COURTS-MARTIAL. 

i. Constitution and Jurisdiction. 

1. Tho di.'-i.-riptions of court-martial before which a person charged T hre< r 
with an olTence too serious to be disposed of summarily by the ofeoV/r't- "' 
cc >nun Hiding officer can ordinarily be brought, are three (a) martial. 

(I.) The regimental court-martial ; 
(2.) The district court-martial ; and 
(3.) The general court-martial. 

None of these tribunals has power to try any person unless he 
is subject to military law as provided by the Army Act (6). But 
each of them has under the Army Act complete jurisdiction to 
try any military offence whatever committed by a person so subject 
to military law ; the difference between their powers consisting,, 
in the extent of punishment which each tribunal can award, and 
in the incapacity of the inferior tribunals to try officers and 
persons in the position of officers. 

2. Thus, a regimental court-martial cannot award a heavier Powers of 
jpimisliment than forty-two days' detention, and cannot discharge pg^ euAal 

a soldier with ignominy ; nor can it try an officer or a warrant 
officer, or a person subject to military law, but not belonging to His 
Majesty's forces (c). 

3. A district court-martial cannot award any punishment higher Of district 
than two years' imprisonment ; and cannot sentence a warrant court " 
officer to any punishment except forfeitures, &c., and either in 
addition to or instead of forfeitures, &o., dismissal, or such ' 
reduction as is mentioned in s. 182 of the Army Act, and cannot. 

try an officer (c/). 

4. A general court-martial alone can award the punishments of Of general 
penal servitude and death, and can try an officer. 

5. A person who since the time at which an offence is alleged to Jurisdiction 
have been committed by him has ceased to be subject to military " certain 
law, may nevertheless be tried and punished by a court-martial for offenders. 
his offence ; but except in the case of mutiny, desertion, or fraudu- 
lent enlistment, he can only be tried within three months after he 

ceased to be subject to military law (e) ; but militia and reserve- 
men can in the case of certain offences be tried within two months; 
after their apprehension (/). A court-martial has no jurisdiction 
to try a person for any offence of which he has been already- 
acquitted or convicted by a court-martial or by a competent civil 
court (ff) ; but this does not apply where there has been no regular 

(a) As to field general court-martial, see below, paras. 24-26. 

(6) Army Act. ss. 175, 176 ; see also Introductory Observations to Part V of the 
Army Act. 

(c) Army Act, s. 47 (5); s. 183 (1); s. 184 (1). A non-commissioned officer above 
the rank of corporal is not ordinarily to be tried by a regimental court. K.K., 
para. 4ri8. 

(d) Army Act, s, 48 (6). 

. () Army Act, s. 158 (1). 

. (/) Reserve Forces Act, 1882, s. 26; Militia Act, 133?, s. 43. 
(/) Army Act, ss. 157, 162 (6), and note. 

(M.L.) c 2 



36 



COURTS-MARTIAL. 



Ch. V. 



Further 
observa- 
tions on 
jurisdic- 
tion. 



Oomposi-j 
tion of 
courts. 



tegal 
minimum. 



Composi- 
tion of 
regimental 
court. 



Of district 
court. 



trial resulting in an acquittal or conviction or in the case of a 
conviction by a court-martial which has not been duly confirmed (a). 
But although as a general principle non-confirmation of a conviction 
by a court-martial enables a man to be tried again, it is obvious that 
this course should only be exceptionally adopted, as, e.g., if the plea 
of a soldier charged with desertion is, that he was guilty, but 
intended to return, and this plea has been recorded as guilty, 
although amounting to a plea of not guilty. The cases where such 
a course is more particularly applicable are mentioned in the 
Act (see ss. 53, 54 (6), 157), and the Rules (see 56 (B) 57, 66 
(B), 100). 

6. An offence, other than mutiny, desertion, or fraudulent enlist- 
ment, cannot be tried by court-martial if three years have elapsed 
since the date of its commission (6), but a partial exception from 
this is made, as stated in para. 5, for militia and reserve men. An 
offence, wherever committed, may be tried and punished at any 
place (either within or without His Majesty's dominions) which is 
within the jurisdiction of an officer authorised to convene general 
courts-martial, and in which the alleged offender may for the time 
3being be, and the trial will take place as if the offender were under 
the command of such officer (c). Offences committed on board ship 
can be tried on board before reaching the port of disembarkation, 
as if committed on land at the place where the offender embarked, 
but no court-martial is ever held on board one of His Majesty's 
ships, except a regimental court-martial for trying a non-com- 
missioned officer (d). 

7. Closely connected with the difference between courts- martial 
as regards their power of punishment is the difference as regards 
their composition, in that the inferior courts-martial consist of 
fewer members, and may be composed of officers of lower rank. 

8. Thus the legal minimum number of members on a regimental 
court-martial, and on a district court-martial, is three ; while on a 
general court-martial in the United Kingdom, India, Malta, and 
Gibraltar it is nine, and elsewhere five (?). 

9. The members of a regimental court' are not required to be (/ ), 
but will as a rule all be, officers of the unit to which the accused! 
belongs, or attached to it, except where detachments of several! 
corps are serving together 011 the march, for example, or on board 
ship. Every member of a regimental court must have held a com- 
mission for a year (g). 

10. A district court-martial must consist, so far as seems practic- 
able, of officers of different corps, and can only be composed 
exclusively of officers of the same regiment of cavalry or battalion 



<) Rule 66 (B) ; Army Act, ss. 53 (4), 54 (6). 

(6) Army Act, s. 161. When a soldier has served in a corps for three years in an 
.exemplary manner, he cannot be tried for fraudulent enlistment or for desertion 
, (other than desertion on active service) committed before the commencement of 
such three years (s. 161). If a soldier has served for three years without an entry in 
the regimental conduct sheet, he is to be considered as having earned exemption 
-under the above enactment; K.E., para. 4>9. 

(c) Army Act, ss. 159, 160. 

(d) Army Act, s. 188; Naval Discipline Act, s. 88. As to discipline of troops on 
>board H.M.'s ships, see Order in Council below, p. 596, para. 7. 

(e) See Army Act, ss. 47, 48, Rule 18, and note ; and as to the number to be 
detailed in ordinary cases, and waiting members, K.R., para. 576. For doubtful or 
complicated cases, a district court should usually consist of five members, ib. Where 
the minimum number is detailed for a court-martial not more than one member 
ehould be a subaltern, ib. 

(/) Army Act, s, 50 (1). 

(y) Army Act, s. 47 (2) (see note), Rule 19 (C). 



Constitution and Jurisdiction. 37 

of infantry, if other officers are n0t available (a). Every member Ch. V. 
of a district court must have held a commission for two years (6). 

11. A general court-martial must also consist, so far as seems Of general 
practicable, of officers of different corps, and can only be composed courb - 
exclusively of officers of the same regiment or battalion if other 
officers are not available (a). Every member of a general court- 
martial must have held a commission for three years, and if the 

court is to try a field officer, must not be under the rank of captain. 
The Army Act further provides that no less than five members 
must be of a rank not below that of captain ; and Rule 21 requires 
the members of a court-martial for the trial of an officer to be of 
equal, if not superior, rank to that officer, unless officers of such 
rank are not available. For the trial of a commanding officer of a 
unit, as many members as possible must hold, or have held, 
commands equivalent to that held by the accused (c). 

12. In the case of the trial of an offender belonging to the Trial of 
auxiliary forces, one member of the court is, if practicable, to members'.o! 
belong to those forces, and to the same branch as that to which the forces, 
accused belongs (d}. 

13. In all cases the members of a court must be themselves General' 
subject to military law, and must not be personally interested in P rovision 9 
any manner in the case to be tried by them. Nor can an officer 

sit on a court-martial if he is the convening officer, or the prose- 
cutor, or a witness for the prosecution, or if he investigated the 
(charges (this will include the company, &c., commander who made 
the preliminary investigation and the officer who takes the sum- 
mary of evidence), or was member of a court of inquiry respecting 
the matters on which the charges are founded, or if he is the 
commanding officer of the accused, or of his corps or battalion (e). 

14. The president of a court-martial must always be appointed President,- 
by the convening officer ( /"). The other officers may be either ap- 
pointed or detailed by the convening officer, and if detailed may be 
appointed by the proper officer according to the custom of the 
service. The president of a court-martial should be not below the 

rank, in the case of a regimental court, of captain ; and in the case 
of a district or general court, of a field officer ; but may in ex- 
ceptional circumstances be of a lower rank(</). In the case of a 
general court-martial, if a general officer or colonel is available, an 
officer of inferior rank is not to be appointed (/*). Honorary rank 
does not entitle an officer to the presidency of a court-martial (i), 
but he is legally qualified if duly appointed. In practice a com- 
batant officer is always appointed, except in the case of regimental 

I courts-martial in the Royal Army Medical Corps, in which case 

I an officer of that corps is appointed. 

15. The object of the regimental court-martial is to try offences Remarks OD 
which, though not of a very serious nature, appear, from the t " al of 
character of the offender or otherwise, to require severer punishment 

than the commanding officer can award ; or which, for some special courts, 
reason, he may deem it inexpedient to deal with himself. As, 

(a) Rule 20 (A), and note. 

(6) Army Act, s. 48 (4), Rule 19 (C). 

(c) Rules 19 (C). 20 (A), and 21 ; Army Act, s. 48 (3) ; K.R., para. 578 (in. 

(it) Rule 20 (B). 

(e) Army Act, s. 50, Rule 19 (B). Bee also notes to that section and that rule 
as to investigating officer and personal interest. A member of a court eaunot act as 
confirming officer for that court, Army Act, s. 54 (4). 

(/) Army Act, s.47(3). 

(g) On trial of a warrant officer the president must not be under the rank of a 
captain ; Army Act, s. 182 (4). 

(A) Army Act, s. 47 (4), and s. 48 (9) ; K.R., i ara. 578. 

(i) K.R., para. 229. 



38 



COUKTS-MARTJAL. 



Convening 
officer. 

Of regi- 

menti-1 

court. 



Ch. V. however, commanding 'officers can now award 14 days' detention,! 
many oti'ences will be dealt with summarily which formerly 
would have been sent before a regimental court. The powers of 
district courts-martial are sufficient to deal with all ordinary offences 
committed by non-commissioned officers and soldiers; and the 
King's Regulations direct that the higher tribunal of a general 
court- martial is only to be resorted to in cases of very aggravated 
offences (a). 

16. The descriptions of courts-martial further differ as regards 
the officers who can convene them. 

17. A regimental court-martial can be convened by a command- 
ing officer (as defined by Eule 129) if not below the rank of 
captain ; also by an officer not below the rank of captain when in 
command of two or more corps, or portions of two or more corps, 
and on board a ship by a commanding officer of any rank. It may 
thus be convened, not merely by the commanding officer of a 
regiment or detachment, but by an officer de facto commanding 
detachments of several regiments, however temporary his command 
may be, if he has, by the custom of the service, authority to tell 
off the offenders belonging to those detachments. A regimental 
4?ourt- martial can also be convened by an officer who is authorised 
to convene a general or district court-martial ; but he should order 
the commanding officer (above described) to convene it, unless that 
officer is unable to form an adequate court from the officers under 
his command (6). 

18. A district court-martial can be convened by an officer 
authorised to convene a general court-martial, or by an officer who 
has received from such officer a warrant authorising him to con- 
vene district courts martial (<). 

19. A general court-martial can be convened by direct warrant 
from His Majesty, or by an officer authorised by His Majesty to 
convene such couits, or by an officer holding a warrant to convene 
such courts from some officer authorised to delegate the power of 
convening them (d). 

20. At home warrants giving officers power to convene 
general courts-martial are usually issued by the King to the 
general officers commanding in chief a ccmmand, to the general 
officer commanding the London district, to the general officers 
commanding in Guernsey and Jersey, .and to the commandants 
of the School of Gunnery and of the Royal Military College. 

21. In India a warrant giving power to convene and to confirm 
the findings and sentences of general courts martial is usually 
issued to the Ccmmander-in-Chief in India, ar.d elsewhere out of 
the United Kingdom to the general officer commanding, either in the 
colonies or on active service. 

22. Any such warrant, and also any warrant of delegation given 
by the officer so authorised, may contain any reservations or special 
provisions, and may be addressed to an officer by name, or by the 
designation of his office ; and may give authority to a person 
performing the duties of an office named, or to the successors in 
command of an officer ; and may be wholly or partly revoked by 
a fresh warrant (e). 



t)f district 
court. 



Of general 

court. 



Warrants 
for conven- 
.ing in U.K. 



In India 
aiul else- 
where out 
of U.K. 



Contents of 
wa; rants. 



(a) K.K., para. 552. 

(fe) Aimy Act, s. 47 (1) ; K.B., para. 559. 

() Aimy Act, ss. 48 (2), 123. 

(d) Army Act, ss. -18 (1), 122. 

(e) Army Act, ?s. 122 (0), (',), 123 (3). For forms of variants, see p. 599 ; ar.d as to 
the ordinj ry practice in issuing warrants, see below, paras. 94, 95. 



Procedure. 39 

23. Every general officer authorised, whether immediately by Ch. V. 
warrant from the King or mediately by delegation, to convene a 



general court-martial has by virtue of the Act power to convene under 
either a district or regimental court-martial, and also to empower warrant for 
another officer to convene district courts-martial, and the latter general" ! 
officer, by virtue of this power, will be able to convene a regimental courts- 
scQurt-martial. Such general officer should, however, as above martial - 
mentioned, only convene a regimental court himself, where circum- 
stances render that course desirable (a). 

24. The foregoing remarks have left out of notice a court-martial FieM 
of an exceptional kind, termed a field general court-martial. This ^ 1 e t ral 
court has the same power as a general court-martial, including the martial. 
power of trying an officer, but is convened in an exceptional way 

{no warrant being required), and is subject to exceptional rules, 
under which the procedure is of a more summary character than 
that of an ordinary court-martial (6). 

25. A field general court-martial can only be convened on active Object of 
service or abroad for the trial of offences which it is not practicable, fieM general 
with due regard to the public service, to try by an ordinary general c 
court-martial. If troops are not on active service, the power of 
convening it is further limited to cases of offences committed by 
persons under the command of the convening officer and of 
offences against the person or property of some inhabitant of, or 
resident in, the country (c). 

26. A field general court-martial must consist of not less than Constitu- 
three officers, unless the convening officer is of opinion that three po"^^ 
are not available, in which case it may consist of two ; but in the 
latter case it cannot award any sentence exceeding imprisonment 

for field punishment. A sentence of death requires the con- 
currence of all the members (d). 

(ii.) Procedure. 

27. When a commanding officer remands an accused person for Applicat'o i 
trial by court-martial he must immediately take steps for the partial by- 
assembly of the court, and, unless for some special reason, must commanct- 
<lo so within 36 hours. If he decides on a regimental court, he will in office> - 
issue his order for convening it ; in any other case he will send 

to superior authority an application for a district or general court- 
martial, accompanied by the summary of evidence, the charges on 
which he proposes the accused person should be tried, and other 
documents, and in his letter of application he will state his reasons 
for desiring the particular description of court for which he 
applies (e). A reference to superior authority must similarly be 
made without delay. In deciding on the line of action he will 
take, the commanding officer will be governed by the directions 
given in the King's Regulations ( /). 

28. An officer receiving an application to convene a district or Duty of 
general court-martial must consider the nature of the case, the convening 
statutory provisions, and the regulations applicable to it, and considering 
_ _ ' _ application 

for court- 
(a) See above para. 17, and K.R., para. 559, which applies also if the offender martial. 

belongs to a special corps or department. 
(6) See s. 49, and notes ; and as to the procedure of field general court-martial, 

Rules 105-1 23. 

(c) As to convening officer, see s. 49 and Rule 105. 

(d) S. 49 (1) (2). 

(e) See also Memoranda for Guidance of Courts-Martial, p. t 5S2, and Form of 
i Application for a Court-Martial, p. 604. 

(/) Rules i (B) and 5 (A) ; K.R., paras. 4S7-492. 



40 



COURTS-MARTIAL. 



Ch. V, 



Power to 
refer to 
superior 
authority. 



Considera- 
tions to be 
borne in 
mind by 
convening 
officer. 



Removal of 
offender for 
trial. 



Notice to 
accused of 
charges, ic. 



subject thereto, must use his discretion as to the mode of disposing: 
of the application. He must satisfy himself that the charge is for 
an offence under the Army Act, and properly framed in accordance- 
with the Rules and King's Regulations, and that the evidence- 
justifies the trial of the accused (). If lie thinks it does not, he- 
should order the accused to be released ; if he doubts, he can order 
the release or refer the case to superior authority. If he thinks it 
should be disposed of summarily or by regimental court-martial, he 
should give directions to that effect. If he thinks it should be 
tried by a district or general court-martial, he will either convene- 
such a court, or apply for such a court to be convened. 

29. He is at liberty to refer to superior authority in any case of 
difficulty, and he will be bound to refer, if the case is one directed: 
by order or regulation to be referred to an officer having power to 
convene a particular description of court. When a soldier is to 
be arraigned on a serious charge, charges for any minor offence may 
be dropped if the convening officer thinks proper (b). 

30. In forming his decision the convening officer will give due 
weight to the prevalence of the particular offence charged, to the- 
general state of discipline in the corps or district, the character of 
the individual, and to all the different circumstances which may 
render it expedient at one time to try an offence by a district, 
court-martial, and at another time to take a more serious view of 
it (c). A case should not, as a rule, be sent for trial unless there 
is reasonable probability that the accused person will be con- 
victed ; at the same time there may be cases where disgraceful, 
charges have been preferred, and where a court-martial affords, 
the only means to the accused of decisively clearing his character. 
In any event, members of courts-martial should not allow the fact, 
of a case being sent for trial, or the fact of a particular description. 
of court-martial having been selected, in any degree to influence- 
their estimate of the evidence. 

31. It is directed by the King's Regulations that offenders are 
not to be sent home from stations abroad with charges pending- 
against them, except in cases of necessity. But for the sake of- 
convenience a person charged may be removed for trial from the 
place where he is serving, so long as he is not prejudiced in his- 
defence by the change (d). 

32. The convening officer having settled the charges on which, 
the accused is to be tried, should take steps for having them, 
communicated to the accused. Ihe officer communicating the- 
charges to the accused should always inquire whether he under- 
stands them, and if not should fully explain them to him. A copy~ 
of the charge sheet must always be given, except when, on active 
service, it is impracticable. Ihe accused should, if he desires it,, 
be informed of the officers by whom he is to be tried, as soon as 
they are named ; and if he is to be tried together with other- 
persons, he should always have notice given to him, so as to- 
enable him to object on the ground that the evidence of the other 
persons is material for his defence. Reasonable steps are to be- 
taken for procuring the attendance of any witnesses whom the. 
accused desires to call (e). A person charged is not entitled to any list 



(a) Rule 17 (A), and note; K.R., para. 567. 

(b) K.R., paras. 548-551, 67, 568. 

(c) K.R.,para. 5S2. 

(d) K.R., paras. 5*59, 570. 

(e) Rules 14, 15, 78. 



Procedure. 41 

of witnesses for the prosecution, neither is he bound to give the Cb. V. 
prosecutor a list of his own witnesses (a). 

33. The accused is to have proper opportunity to prepare his Reused to 
defence, and liberty to communicate with his witnesses and legal tunity of 
adviser, or other friend. This liberty is subject to the limitation preparing 
that such persons are available, as the object of the rule is to give d 

the accused full opportunity to prepare his defence, but not to 
enable him to postpone his trial (6). 

34. When a court-martial assembles at the time and place Assembly 
named in the order, the members will take their seats according 

to their rank (c). If a judge advocate has been appointed, he 
must be present. The court is considered to be open, and the 
accused may be, but need not be, present during the preliminary 
proceedings. The charges and summary of evidence in the case 
of all the persons charged, if more than one, will be produced by the 
president. 

35. The hours of sitting will usually be, in the United Kingdom, Hours of 
between 10 a.m. and 4 p.m , or 11 a.m. and 5 p.m.; elsewhere 81 
they will be regulated by general officers commanding, but a court 
should never sit more than eight hours during one day (d). 

36. The first duty of the court will be to read the order con- Proceedings 
veiling the court. This order will appoint the president, and detail mencement 
or appoint the officers; and will notify the judge advocate appointed, of trial. 

If the order appears on the face of it to be proper, the court will 
have complied with Eule 22 (A) (i), requiring them to ascertain 
that the court has been convened in accordance with the Army Act 
and Rules. 

37. The court will then proceed to ascertain that the proper Eligibility 
number of officers is present, and that each of those officers is f^ re 
capable of serving ; that is to say, is eligible and not disqualified to aisqualifica- 

serve on the court-martial, and is of the rank required by the order tlon f 

; / \ mi i- -L-i-j. s ' cz. j i members 

convening the court (e). The eligibility of an officer depends on O f court. 

his status as an officer, that is, on his being subject to military law, 
and having held a commission for the required period (/"). Dis- 
qualification is a personal question, and depends on his being, or 
having been, in any manner a party to the case (g}. The corps to 
which officers belong, or their rank, is a matter merely for the 
convening officer, except that the court should ascertain that the 
provisions of Rules 20 and 21 are observed, and on the trial of a 
field officer, that none of the officers are under the rank of captain (k). 
If any officer appears not capable of serving he will retire, and one 
of the officers in waiting will be directed to serve in his stead, and 
his capacity of serving must be considered in the same manner. It 
will usually be convenient, where there are officers in waiting, to 
consider their capacity to serve before proceeding further. 

38. The court will also ascertain that the president is of proper ^ e f r ^ resi " 
rank as required by the Army Act (i), and that the judge advocate of. judge 
is not disqualified (/). advocate. 



(a) Rule 77. 
(6) Rule 13. 

(c) Rule 58. 

(d) K.R., para. 579. Rule 64. 

(e) Rule 22 (A) (ii) and (iii) ; see above, paras. 9-11. 
(/) Army Act, ss. 47 (2), 48 (3) (4) : Rule 19 (A) and (C). 
(g) Army Act. s. 50 (2) (3) ; Rule 19 (B). 

(ft) Anny Act, s. 48 (7). See also Rules 21 and 22. 

(i) Army Act, S3. 47 (4), 48 (9), 182 (4). 

0) Army Act, s. 50 (3) ; Rules 22 (B), 101 (B). 



42 



COURTS-MARTIAL. 



Ch. V. 

Adjourn- 
ment if 
court not 
properly 
cnn-tituted, 
or accused 
not pro- 
perly 
charged. 



Amena- 
bility of 
accused to 
jurisdic- 
tion. 



Prosecutor 
may be 
present. 



Conclusion 
of prelimin- 
ary proceed- 
ings. 



Seat for 
f.ecused, 
when 
allowed. 

Objections 
I jy accused 
to members 
of court. 



39. If at any stage of the above proceedings the court are not 
satisfied on any point, or the president appears to be ineligible 
disqualified, or not of proper rank, or if officers by being found to 
be ineligible or disqualified are obliged to retire so as to reduce 
the number below the detailed number, the court in some cases 
must adjourn, and in others will fiud it expedient to adjourn, for 
the purpose of consulting the convening authority. Where, how- 
ever the number of officers is not reduced below the legal 
minimum; and the court consider that in the interests of justice 
and of the service it is inexpedient to adjourn, they can proceed, 
but must record their reasons (a). _ 

40. The court, having ascertained the validity of their con- 
stitution, will then consider whether the accused to be tried is 
amenable to their jurisdiction and whether the charge is properly 
framed ; if not satisfied the court should adjourn and report to the 
convening authority (b). 

41. As the court is an open court, the prosecutor may be present 
during the above proceedings, and may be consulted by the court ; 
but he has no status before the court until after those proceedings 
are concluded. 

42. Onthe conclusion of the above preliminary proceedings the 
prosecutor will assume his position as prosecutor, being required 
then to take his seat, and the accused, if not previously present, will 
be brought before the court. The accused, if an officer, will be 
in the custody of an officer; if a non-commissioned officer, in the 
custody of a non-commissioned officer ; and if a private, in the 
custody of an escort. If necessary, an escort may be employed in 
any case (c). 

43. The accused is allowed a seat as a matter of course in the 
case of an officer, and in any other case when the court think 
proper. Accommodation is to be afforded, on the application of the 
accused, for his friend or counsel. 

44. The accused will then be asked whether he objects to be 
tried by the president or any of the officers appointed to form the 
court. If he does so object, he will >he asked to name all the officers 
to whom he objects. If the objections are more than one, eacli 
objection will be taken in succession, that to the junior officer in 
rank being taken first, except that an objection to the president 
must be disposed of before any other objection. The accused will 
be asked to state the grounds of his objection, and those grounds 
will be submitted to the other officers, even though some of them 
may have been objected to, and will be decided by them(rf). If 
the objection to an ordinary member is allowed the officer will retire 
and one of the officers in waiting will be ordered to serve, subject 
to a similar right of objection by the accused. 1 f the objection to 
the president is allowed, the court must adjourn. The mode of 
inquiring into and disposing of objections is detailed in Rules 25 
and 71 (A) (B). An objection to the president must be allowed if j 

' one-third of the members are in favour of allowing it (e) ; objections 
to other officers must be allowed if allowed by one-half (/). 

(a) Rules 18 (A), 22 (C). (b) Rule 23. 

(c) Rule 24 ; K.R., para. 5 C 0. If the prosecution is instituted at the instance of a 
civilian, that civilian may be in court and assist the prosecutor, but he cannot 
speak or take part himself in the prosecution, except as a witness, as (subject to the 
rule as to counsel), the prosecutor must under this Rule be in every ease subject to 
military law, though, of course, this requirement does not extend to counsel appearing 
for the prosecution. 

(d) Rule 25 (D.) 

(e) Army Act, 3. 51 (3). (f) Army Act, s. 51 (5). 



Procedure. 43 

45. If the officers are by reason of the objections being allowed Ch - 
reduced in number below the legal minimum, the court must 
adjourn for the appointment of fresh members. If the court is ,',',', 
reduced in consequence of objections below the number detailed, a iio\\u<\. 
but not below the legal minimum, and the majority of the members 
think that in the interests of justice and for the good of the service 

it is inexpedient to adjourn, they can record their reasons and 
proceed with the trial, but otherwise they should adjourn for the 
appointment of fresh members (). On the appointment of a new 
president or of fresh members, the like procedure must be followed. 
Upon any such adjournment of the court the convening officer can, 
if he pleases, convene a new court, as the trial of the accused is 
not considered to begin until the court are sworn (b). 

46. After the disposal of any objections made by the accused the Swearing of 
court will be sworn, if there is a judge advocate, by the judge members, 
advocate, and if not, by the president, the president being sworn 

by some member of the court who has been previously sworn. The 
form of oath is prescribed by the Army Act (c). 

47. After the members of the court are sworn the judge advocate Of .judge 
and officers attending for the purpose of instruction will be sworn, advocate 

,..,.. . , , ., , i and ofhc ers 

and if it is intended to employ a shorthand writer or interpreter, lie attending 
must be sworn also ; but a shorthand writer or interpreter may be fcr instruc- 
sworn at any stage of the proceedings (d). The accused cannot l 
object to a judge advocate, but has a right to object to a person ^nd^'-nter 
proposed to be sworn as interpreter or shorthand writer on the an <i inter- 
ground that he is not impartial (e). The president will therefore preter. 
inform the accused of the person intended to be sworn and ask him 
if he objects, and if so, on what ground. In certain cases a solemn 
declaration to the same effect as an oath may be substituted for the 
oatli (/). 

48. Where several offenders are to be tried, whether together or Court may 

separately, the members of the court may be sworn at the same ' Je sworn to 
,. -f j ii cji 11 j_ -i i try several 

time to try all of them, but each person charged must be present, and O fi en ders. 

asked separately if he objects to any member. One case will be 
taken first, and the others will be taken afterwards in succession (g). 

49. As soon as the members and other persons are sworn, the An-aign- 
accused will be arraigned. Arraignment consists in the judgement of 
advocate, or, if there is none, the president or some member of the accused, 
court, reading each charge to the accused and asking him if he is 
guilty or not guilty of the charge. This will be clone with each 
charge in a charge sheet (//). If the charges against the accused 

are contained in more than one chaige sheet, the arraignment as 
well as the prosecution, defence, and finding, in the case of each 
charge sheet, must be kept separate ({). 

50. Where several persons are charged with an offence com- Claim of 
mitted collectively, any one of them may on his arraignment (if he accused 
has not done so before by notice to the convening authority) claim be 'tried 
to be tried separately, on the ground that the evidence of some one separately. 
or more of the other persons charged will be material to his defence. 

The court, if satisfied that the evidence will be material, must 

(a) Rules 25, 18. 

(b) Rule 18 (B). 

'c) Army Act, s. 52 (1). 

(of) Rule's 27, 72. 

(e) Rules 25 (B), 72 (C). 

(/) Army Act, s. 52 (4) ; Rule 28. 

(7) Rule 71. 

(A) Rule .31. 

(i) Rule 62. 



44 



COURTS-MARTIAL. 



Ch. V. 



Objection 
by accused 
to charge 
before plea. 



Plea to 
jurisdiction 
of court. 



Plea in bar. 



Plea of 
"guilty." 



Procedure 
on plea of ' 
"guilty." 



allow the claim, unless the nature of the charge as might be the 
case (for example) in a charge of mutiny does not admit of its 
allowance (a). 

51. The accused before he pleads to a charge may object to it* 
validity, and the court must either overrule the objection, or, if 
they think it valid, adjourn for the purpose of obtaining an amend- 
ment of the charge from the convening officer. A mere mistake, 
however, in the name or description of the accused may always 
be corrected by the court (6). 

52. The accused may also offer a plea to the general jurisdiction 
of the court and give evidence in support of that plea. The court 
will decide this question of jurisdiction in the same manner as any 
other question. If the plea be overruled, the court will proceed 
with the trial ; if it be allowed, the court must record its decision 
and reasons, report to the convening officer, and adjourn. If there 
is any doubt, the court may refer to the convening officer, or 
record a special decision and proceed with the trial (c). 

53. A plea in bar of trial may also be offered by the accused, at 
the time of his general plea of "guilty" or "not guilty," on the 
ground that he has already been convicted or acquitted by a civil 
court or by a court-martial, or has been dealt with summarily by 
his commanding officer for the offence, or that the offence has been 
pardoned or condoned, or was committed more than three years 
ago, or, in the case of certain civil oiFences, not within the shorter I 
period allowed for commencing proceedings. The plea must be* 
recorded as well as the general plea of the accused, and may be 
supported by evidence. If the court find the plea not proven, they 
will proceed with the trial ; if they find it proven, they will notify 
their finding to the confirming authority and adjourn, unless there 
is some other charge against the accused not affected by the plea. 
In either case, the finding requires confirmation (d). 

54. If the accused pleads guilty, the president should, before the 
plea is recorded, explain the charge to him so as to prevent his 
pleading guilty in consequence of ignorance of the exact nature of 
the charge or of the effect of the plea ; and should also point out to 
him that with a plea of guilty there will be no regular trial, but 
merely a consideration of the proper amount of punishment, that 
he can only make a statement in mitigation of punishment, and 
call witnesses as to character, and that if he wishes to prove 
extenuating circumstances, or indeed to make any kind of defence 
whatever, he should plead not guilty (e). 

55. If the accused, nevertheless, determines to plead guilty, the 
court will find him guilty, and will then proceed, after hearing 
any statement he desires to make, to read the summary or abstract 
of evidence, and annex it to the proceedings. If there is no 
summary or abstract ( /), the court must take and record sufficient 
evidence to enable them to determine the sentence. The accusedi 
may then make a statement in mitigation of punishment, and the 
court may allow witnesses to be called in support of that statement. 
The accused may then call witnesses as to character. Should it 



(a) Rule IS. This rule is not affected by the right of the accused to give 
evidence. For though each person charged can, if he likes, give evidence, none 
of the others can compel him to do so. 

(6) Kules 32, 33. 

(c) Rule 34. 

(d) Rule 36. 

(e) Rules 36 and 37, and see notes to those Rules. 

(/) There will be a summary of evidence in the case of regimental as well as ii> 
the case of general and district courts-martial. 



Procedure. 45 

appear to the court that the accused did not understand the Ch. V. 
effect of his plea of " Guilty," it will be Iheir duty to enter a plea 
of "Not guilty." and to proceed with the trial (a). 

56. Where the accused refuses to plead, or pleads unintelligibly, Refusal to 
& plea of not guilty must be recorded (b). A plea of not guilty p ' 
can be withdrawn by the accused at any time during the trial, 

a,nd in such case the procedure is substantially the same as in the 
case of an original plea of guilty (c). 

57. On a plea of not guilty, the prosecutor will, if the case is Plea of "not 
complicated, make an opening address, giving an outline of the g uiltv -" 
evidence he intends to call, but abstaining from any argument and 
comments not required to explain the nature of the case. The duty Duty of 

of the prosecutor is fully laid down and explained in Rules 39 and P rosecutor - 
<60, and the notes thereto ; and it is only necessary here to observe 
generally that the prosecutor is an officer of justice, whose first 
duty is to ascertain the truth not to obtain a conviction inde- 
pendently of the truth ; and that he is bound to act with scrupulous 
candour and fairness towards the accused and the court, and to 
conduct the case throughout in a fair and moderate spirit. Any 
deviation from the above line of conduct will be at once checked 
by the court (d). 

58. On the conclusion of his address, the prosecutor will call the Examina- 
svidence for the prosecution. The accused is at liberty to cross- ^f^esses 
examine the witnesses, and the prosecutor may then re-examine for prosecu- 
them on matters raised by the cross-examination (e). tion - 

59. At the close of the case for the prosecution, the accused will Defence of 
'be called on for his defence. The course of procedure on the accused - 
defence differs according to whether the accused does or does not 

call witnesses to the facts of the case other than himself. 

The procedure when he does not call any such witnesses (i.e., 
j witnesses to the facts other than himself) is the same as when he 
I calls no witnesses at all. In this case the accused, if he wishes to do 
so, will give evidence as a witness, and may be cross-examined by the 
prosecutor, subject to the privileges mentioned in Chapter VI. para. 
93. At the close of the evidence of the accused, or, if the accused 
has not given evidence, immediately on the close of the case for the 
prosecution, the prosecutor may sum up the case for the prosecution, 
and may comment on the evidence of the accused, if any, but he must 
not comment on the fact that the accused has not given evidence 
himself. The accused may then make an address in his defence, 
;and call his witnesses (if any) as to character ; and the judge 
-advocate (if any) will then sum up, unless both he and the court 
think a summing up unnecessary, and the court will consider their 
\finding. 

60. If, on the other hand, the accused calls witnesses to the Procedure 
facts of the case other than himself, he may make an opening j, f al a 1 s C ^: d 
.address ; he will then call his witnesses (including himself if he nessesT'other 
wishes to give evidence), who may be cross-examined by the pro- than wit ~ 
.-secutor and re-examined by the accused. The accused may then character, 
sum up his case in a second address, and the prosecutor may reply. 

After the reply of the prosecutor, the judge advocate (if any) will 

(a) Rule 37. 

(6) Rule 35 (A). As to procedure where a plea of guilty is recorded to one or 
more of the charges in a. charge sheet, and a plea of not guilty to others, sea 
Utule 37 ( A). 

(c) Rule 38. 

(rf) See Rule 60, and note. 

4f) Rule 84 ; see Rule 39, and note. 



4G 



COURTS-MARTIAL. 



Ch. V. 



Latitude 
allowed in 
defence. 



Court not to 
be influ- 
enced by 
supposed 
intention of 
convening 
officer. 



Friend of 
accused. 



Counsel. 



sum up, unless both he and the court think a summing up unneces- 
sary, and the court will consider their finding (a). In exceptional 
casts witnesses in reply may be called for the prosecution before 
the second address of the accused (6). 

If a person defended by counsel or by an officer exercises his 
right of making a statement (a right which he enjoys if he doas not 
give evidence himself), the procedure will be, as far as possible, 
the same as if he had called witnesses to the facts of the case (c). 

61. The accused is to be allowed great latitude in making his 
defence, and will not, within reasonable limits, be stopped by the 
court merely for making irrelevant observations (d). The court 
must never forget that the principle of English law is, that an 
accused person is presumed to be innocent until proved to be guiltv, 
and that, although there are cases where the prosecution may, by 
proving certain facts, raise a presumption of guilt which the 
accused must rebut, yet, generally speaking, the burden of proof 
lies on the prosecution, and any doubt as to the sufficiency of proof 
must be decided in favour of the accused. Nor must it be forgotten 
that the right now enjoyed 1 >y the accused of giving evidence himself 8 
has not shifted the burden of proof. It is no more possible than 
formerly for the prosecution to rely on mere primd facie evidence 
of guilt, on the ground that were it not true the accused could go- 
into the box and contradict it. 

62. The court, in considering their decision, should not allow 
themselves to be influenced by the consideration of any supposed 
intention of the convening officer in sending the case for trial. It 
may be very right to send for trial a person who, when tried, 
ought to be acquitted, and therefore an acquittal is not in itself 
a reflection on the convening officer. Even if it were, it would be 
no reason whatever for a court to convict, unless the evidence 
established the charge to their satisfaction. 

63. The accused is allowed to have a friend to assist him, who 
may be either a legal adviser or any other person. If the friend is' 
not a barrister, a solicitor, or an officer subject to military law, 
he can only advise the accused and suggest questions to be put 
by the accused to witnesses ; but if he is a barrister, a solicitor, 
or an officer subject to military law, he has the rights and duties 
of counsel under the Rules (e). 

64. Formerly counsel, though they could appear as advisers 
either of the prosecution or of the defence, could not address the 
court or examine witnesses orally. But now, by Rules 88-94, 
counsel who appear on behalf of either prosecutor or accused, 
have the same rights as to addressing the court, examining 
witnesses, and generalty, as the persons whom they represent. A 
person defended by counsel or by an officer may, however, if 
he does not give evidence himself, make a statement, giving his 
own account of the subject of the charges, but cannot be sworn 
or cross-examined on it ( /). The rights and conduct of counsel 
are regulated by the above-mentioned Rules, and by the Army Act, 
which provides a mode of enforcing the provisions of the Rules 
and due respect for the court (g). 



(a) Rules 40-42. 

(6) Rule 86 (B). As to the evidence of the accused himself, see Rule 80. 

(c) Rule 94. The forms in Appendix II provide for every possible contingency. 

(d) Rule 60 (C). 

(e) Rules 87, 93 (B). 
(/) Rule 9 1. 

(ff) Army Act, s. 129. 



Procedure. 47 

65. Every witness, whether for the prosecution or defence, is Ch. V. 
required either to be sworn or to make a solemn declaration (</). 

All questions are to be put to the witness direct by the prosecutor, ti,,!, ,,< 
accused, or judge advocate (b). If any improper question is witnesses, 
addressed to the witness, the prosecutor, or accused, or jucl. 
advocate, or a member of the court, should object to the 
question before the witness answers it, and the objection will 
be disposed of before the witness answers (c). During the 
discussion on any such objection the witness may be ordered to 
withdraw. When not under examination, witnesses should not, 
as a rule, be allowed to be in court (c?). 

66. The evidence of every witness is to be read over to him Evidence to 
before he leaves the court, and he may offer, or be called on by '* ^J' 1 over 
the court, to explain or to reconcile answers which may appear nesses, 
inconsistent. The explanation can be entered on the proceedings, 

only as an addition to the evidence previously recorded, and any 
discrepancy must, for the sake of justice and for the information 
of the officer whose duty it is to confirm the sentence, still appear, 
although the apparent contradictions may have been satisfactorily 
explained. Each party is allowed to question the witness as to 
such explanation (). 

67. At the request of the prosecutor or accused, a witness may Recalling 
be recalled by leave of the court at any time before the time for Wltnesses * 
the second address of the accused. And where the witnesses for 

the accused have introduced new matter which the prosecutor could 
not reasonably have foreseen, he can, with the leave of the court, 
call or recall a witness to give rebutting testimony. The court 
can call or recall a witness at any time before the finding, but they 
should exercise this power w T ith caution ; and if they do exercise it, 
they should put to the witness any question which they are 
requested by the prosecutor or accused to put, unless they consider 
the question irrelevant (/). The court can also at any time put 
questions to witnesses ; and should ordinarily put any question 
which the prosecutor or accused requests to be put after the 
conclusion of the re-examination or cross-examination (g). The 
court can also, in exceptional cases, themselves call witnesses who 
have not been called by either side (/<). 

68. The allowances for the expenses of both military and Expenses of 
civilian witnesses in. attending courts-martial are regulated by itHesses - 
the Army Allowance Regulations, to which reference must be 

made (i). 

69. In India, if an interpreter v be required, a qualified military Interpreter, 
officer is usually appointed. In the colonies, courts-martial usually 

call on the interpreters of the* civil courts, where their services are 
available. A member of the court-martial is not disqualified from 
acting as interpreter, and may do so with advantage where the 
evidence to be interpreted is not likely to be protracted ; but it is 



(a) Rule 82. With respect to the examination, cross-examination, and re-examina- 
tion of witnesses, see further, Rules 84-86, and eh. VI, paras. 104-119. 

(b) As to the examination of the accused when giving evidence, see note on 
Rale 59 (B). 

(o Rule 83 (A). 

(d) Rule 81. This, of course, does not apply to a perjon on trial who gives evidence. 

(e) Rule 83 (B). 

(/) Rule 86, and note. 
(g) Rule S.% and see Rule 66 (D). 
(h) Rule 86 (D), and note, 
(t) See also Rule 78 (A) as to cost of witnesses. 



48 



COURTS-MARTIAL. 



Ch. V. 



Remarks on 
employ- 
ment of 
interpreter. 



Court is 
open, but 
maybe 
closed for 
delibera- 
tion. 



Absence of 
member. 

Member 

cannot 

abstain 

from 

voting. 

Finding. 



obvious that his acting as such through an extended proceedings 
might bring him into collision with the parties, and be otherwise 
inconvenient. 

70. The greatest caution should be exercised to ensure faithful 
translation, and to guard against misconception of the true meaning 
of any expression, either from the incompetence, or from the 
possible bias, of the person employed to interpret. The inter- 
preter should render the very words as closely as possible, and not 
run the risk of obscuring the proper force of an expression by 
attempting to give the corresponding idiom, and the court may call 
on him to explain any part of his translation, and may refer to a 
second interpreter if they should entertain any doubt, or be desirous 
of further information. Upon a question being raised as to the 
precise meaning of the words used by a witness, they should 
instantly be taken down in the equivalent English character, when 
the language has a peculiar alphabet, or as near the sound as may 
be when it is not a written language (a). A party to the trial is at 
liberty to request the presence and assistance of a private inter- 
preter, and may apply to the court to hear his version of the precise 
meaning of the witness's words, or an illustration on his part of 
any phrase which admits of a second construction ; and the court 
will, according to the circumstances of the particular case, decide 
on the application, neither allowing unnecessary interruption on the 
one hand, nor restricting the accurate investigation required by 
justice on the other. 

71. The court can deliberate in private, and may either withdraw 
for the purpose or cause the court to be cleared (6) ; but at other 
times the court must be open to the public, military or otherwise, 
so far as the room or tent in which the court is held can receive 
them. It is not usual to place any restriction on the admission of 
reporters for the press. 

72. A member of a court who has been absent during any part 
of the evidence ceases to be a member (c). 

73. Every member of the court is bound to give his opinion on 
any question which comes before the court, and cannot abstain from 
voting. The opinions of members are taken in order, beginning 
with the junior in rank (d). 

74. The court must consider their finding in closed court ; and 
the finding on each charge must be taken and recorded separately. 
The finding on a charge will be " guilty " or " not guilty," or " not 
guilty, and honourably acquit him of the same " ; but the court 
may by a special finding find the accused guilty subject to a 
statement of exceptions or variations. If the court doubt whether 
the facts proved amount in law to the offence charged, they may 
refer to the confirming authority before recording their finding (e). 
In the case of certain specified offences, a person charged with 
one offence may be found guilty of a cognate offence though not 
charged : for example, a person charged with stealing may be 
found guilty of embezzlement, and vice versa (f). A recommen- 



(a) Rule 95 (B) note. There are other cases where it would be desirable to retain j 
the original words in the proceedings, but it should in no case be allowed to ramain 
without a translation, as many words which present no difficulty on the spot 
may yet be wholly unintelligible to the confirming authority. 

(6) Army Act, s. 53 (5), Rule 63. 

(c) Rule 68. 

(d) Rule 69. 

(e) Rules 43, 44, and App. II to Rules. (Form of Proceedings in App. 11. par. (10), 
p. 573.) 

(/) Army Act, s. 56, ch. VI, para. 9. 



Procedure. 49 

dation to mercy will be recorded in the proceedings, with the Ch. V. 
reasons of the court, and promulgated and communicated to the 
accused ; but, save as provided by the Rules, any expression of 
opinion as to anything occurring before the court, and any matter 
which the court may desire to report must be stated in a separate 
document (a). 

75. If the court find the accused " not guilty" on all the charges, Of "not 
they will pronounce their finding in open court, and the accused g ullfc y-" 
will be discharged (6). 

76. If, on the other hand, the court find the accused guilty of Of "guilty." 
any charge, they will proceed to consider their sentence ; though 

before doing so, all the charges in all the charge sheets (if more 
than one) must, unless otherwise directed by the convening officer, 
be tried : and one sentence only can be awarded in respect of all 
the offences of which the accused is found guilty (c). 

77. The court should, unless it seems to be impracticable, before Procedure 
considering their sentence take evidence of the former convictions tionpre- C " 
(if any) of the offender, and of the other particulars mentioned in liminary to 
Rule 46, and at the conclusion of the evidence the accused is ^J^ 1 ^ 6 " 1 " 
entitled to address the Court thereon ; and, in addition, the sentence, 
prosecutor must call the attention of the Court to the fact (where 

that is the case) that their finding subjects the accused to some ex- 
ceptional punishment such as forfeiture of corps pay, and the Court 
must inquire into the nature and amount of that punishment (d). 

78. The punishment awarded by the Court must be one of those Wording, 
allowed by the Army Act (e). Consequently, a non-commissioned ^nature of 
officer cannot be sentenced to a reprimand, nor can an army sentence, 
schoolmaster, unless he has been transferred from the ranks, be 
sentenced to reduction to the ranks. The sentence should follow 

the forms given (see Appendix II to the Rules), or if no form seems 
exactly applicable, should follow as nearly as possible the terms of 
the Army Act, and it will be dated and signed by the president. 
If there is a judge advocate, he also will sign the proceedings. The 
proceedings will then be sent for confirmation (/). 

79. The " proceedings " are an entire record of the whole of the Proceedings 
transactions of the particular court (g}. They are kept under the 
orders of the judge advocate or president, who is responsible for 

their accuracy and completeness. The form in which they are 
required to be recorded will be found at p. 560. 

80. In deliberating on their sentence a court-martial should ever Generar 
remember that the object of awarding punishment is the main- bserva - 
tenance of discipline, and should bear in mind the considerations duty of a 
to which their attention is directed by the King's Regulations (h). court- 
The proper amount of punishment to be inflicted is the least ^rding 1 
amount by which discipline can be efficiently maintained. Occa- sentence, 
sionally the exigencies of discipline, apart from the circumstances 

of the particular case, may render a severe sentence necessary. 
But apart from special circumstances the court should not inflict a 
severe sentence merely because it has the power of a general court- 
martial ; and if a general court-martial is of opinion that the case 

(a) Army Act, s. 53 (9). and note. Rules 49, 95 (E). 

(6) Army Act, s. 54 (3). 

(c) Rule IS. 
I (d) Rule 40. 

(e) See s. 44; and as to Indian officers, s. 180 (2) ; as to warrant officers, s. 182; 
land as to non-commissioned officers, s. 183. See also K.R. 583. 

(/) Rule 50. 

(g) See Rules 45,95-100. 

(A) K.R., para. 583, which gives general instructions to courts-martial for award- 
ing punishments. 

(M.L.) D 



COURTS-MARTIAL. 



Ch. V. 



Joint 
offenders. 



Further 
observa- 
tions. 



Further ob- 
servations ; 
classifica- 
tion of 
offences. 



Repeated 
offences of 
individual. 



General 
prevalence 
of crime. 



is one for which a sentence of a month's detention is snffi- 1 
cient for the maintenance of discipline, the court should not inflict 
a heavier sentence merely because the court is a general court- 
martial. So, again, if the accused has elected to be tried by a 
district court-martial, instead of submitting to the jurisdiction of 
his commanding officer, his punishment should not on that ground 
be increased ; in fact, it can hardly in ordinary circumstances be 
necessary that the court should give a heavier sentence than that 
which the commanding officer has power to award. 

81. Where several offenders are found guilty of the same offence, 
it may often be proper to award different degrees of punishment. 
In some cases it would appear that the degrees of criminality of 
the offenders are different ; while in others regard will be paid 
to their relative rank. For example, a non-commissioned officer 
should as a rule be more severely punished than a private soldier 
concerned with him in the commission of the same offence. 

82. The court has power to punish for contempt a person on trial, 
but its members should not allow themselves to award an unduly 
severe punishment through irritation at the conduct of the accused 
on his trial, or in consequence of the nature of his defence. If 
persons mixed up in the transaction forming the subject of the 
trial have been witnesses at the trial, the accused is entitled to 
impeach their motives and charge them with criminality ; and if he 
oversteps the boundary of propriety in this respect, by making 
entirely groundless charges against them, or against other innocent 
persons, he can, if necessary, be tried for making false accusa- 
tions (). 

83. Offences, considered in reference to the award of sentence, 
may be committed with or without premeditation, and with or 
without provocation ; and beginning with the highest degree of 
criminality may be classified as follows : 

(1.) Offences committed with premeditation and without 
provocation : 

(2.) Offences committed with premeditation and with pro- 
vocation : 

(3.) Offences committed without premeditation and without 
provocation : 

(4.) Offences committed without premeditation and with pro- 
vocation. 

In cases of doubt as to the proper amount of punishment to be 
awarded, it will be useful to bear in mind this classification. 

84. Another material element in crime in reference to the 
individual is its frequency ; in other words, an habitual offender 
deserves far greater punishment than an infrequent offender ; 
and in every case if possible the first offence should be treated 
leniently. 

85. Military offences, however, must be considered in reference 
to circumstances other than those immediately connected with the 
individual offender. When there is a general prevalence of offences I 
or of offences of some particular class, an example may be necessary | 
(fr), and a severe punishment may justly be awarded in respect of an 
offence which otherwise would receive a more lenient punishment. 
In such cases the punishment for the offence must be regarded 

(a) See s. 27, and Rule 60 (C), and notes. 

(6) See instructions to courts-martial (p. 576), wherein it is stated that before the 
court is closed to consider their sentence, a certified copy of any local order which may 
have been issued regarding the prevalence of any particular offence, is to be pro- 
duced to the court. 



Procedure. 51 

in reference to the effect to be produced on the military body Ch. V. 
to which the offender belongs, rather than in reference to 
the act of the individual himself. 

86. Military offences, unlike civil offences, frequently consist insubortfi- 
in words, e.g., the use of insubordinate language. As a general 
principle, the improper use of words should not be treated with 

the same severity as offences consisting in acts. Further, great 
care should be taken in discriminating between mere angry or 
irritable expressions, and words indicating a deliberate intention 
to be insubordinate or to resist lawful authority. A soldier 
frequently uses violent language which is a mere outburst of 
momentary irritation or excitement, without at all intending to 
be insubordinate. Again, allowance must be made for the coarse 
expressions which a man of inferior education will often use as 
mere expletives. Such expressions may be insubordinate if used 
to a commissioned officer, and not so when used to a non-com- 
missioned officer, or when used under one set of circumstances, and 
not when used under another. Language, therefore, should be 
construed with due regard to all surrounding circumstances ; and 
the intention of the man in using it should be carefully considered, 
before it is held to constitute the grave offence of using threatening 
or insubordinate language to a superior officer. 

87. In all cases the whole corps should have an opportunity of Discipline, 
seeing that the punishment awarded to any individual is not more n^ntaine 
than is necessary, in the interests of the corps itself, and for the 
maintenance of discipline. Without discipline all military bodies 
become mobs, and worse than useless ; but discipline enforced by 
punishment alone is a poor sort of discipline, which will not 

stand any severe strain. What must be aimed at is that high 
state of discipline, which springs from a military system ad- 
ministered with impartiality and judgment, so as to induce in all 
ranks a feeling of duty, and the assurance that, while no offence 
will be passed over, no offender will be unjustly dealt with. 

88. As the court have (save in the case of conviction of an officer Eecom- 
under s. 16 of the Army Act, for conduct unbecoming an officer 

and gentleman, and in the case of a conviction for murder under 
s. 41 (2) ) absolute discretion as to the sentence, a recommendation 
to mercy will be exceptional (a). It will usually be required only 
where the offence is in itself very serious, and where the court, 
though unwilling to pass a lenient sentence, lest the offence should 
be considered a venial one, think that, owing to the offender's 
character or other exceptional circumstances, he should not suffer 
the full penalty which the offence would ordinarily demand. As a 
rule, the court will be able to adjust the sentence according to 
what, in their judgment, the offender should suffer, having regard 
not only to the offence, but to the attendant circumstances and his 
character, so that the award may be final and carried into effect. 
It is indisputable that crimes are more effectually prevented by 
certainty than by severity of punishment. 

(iii.) Proceedings subsequent to Finding and Sentence 
of Court- Martial. 

89. The acquittal by court-martial on any charge of an accused Confirma- 
person is final, but a conviction and sentence are not valid until tj n of pro- 
confirmed by superior authority (b). Where there is a judge ' 

(a) Army Act, s. 53 (9), Rule 49. (b) Army Act, s. 54 (3) (6). 

(M.L.) D 2 



52 



COURTS-MARTIAL. 



Ch. V. 



Of regi- 
mental 
court- 
martial. 



Of district 
court- 
martial. 



Of general 
court- 
martial. 

Warrant for 
general 
court- 
martial. 

In the 
U.K. 



In India 
nnd else- 
where 
abroad. 



Delegation 
as to district 
court- 
martial. 

Power of 
confirming 
authority 
to send back 
rinding and 
sentence for 
revision. 



advocate, he is responsible for transmitting the proceedings for 
confirmation ; where there is not a judge advocate, this duty 
devolves on the president. 

90. The finding and sentence of a regimental court-martial are 
to be confirmed by the convening officer, or by the officer having; 
authority to convene the court at the time of the submission of the 
proceedings (a), 

01. The finding and sentence of a district court-martial are to be- 
confirmed by an officer authorised to convene general courts- 
martial, or deriving authority to confirm from an officer authorised 
to convene general courts-martial (6). 

92. The finding and sentence of a general court-martial are to- 
be confirmed by His Majesty, or by an officer deriving authority to 
confirm either immediately or mediately from His Majesty (c). 

93. This authority, where given by the King, is given by the- 
warrant respecting courts-martial mentioned above. Any warrant,, 
whether issued by the King or by an officer, may reserve any of 
the powers which would otherwise be conferred by it (d). 

94. The warrant issued to an officer in the United Kingdom | 
does not usually give authority to confirm the findings and 
sentences of general courts-martial, which, consequently, in the. 
United Kingdom, require confirmation by the King. 

95. The warrant issued to an officer commanding abroad usually 
gives authority to confirm the findings and sentences of general 
courts-martial, and to delegate that power. Where the officer is 
the Commander-in-Chief in India, and sometimes where he is com- 
manding-in-chief on active service, the power of confirmation is 
given without any reservation, except at the option of the officer. 
In other cases, besides the optional reservation, the warrant reserves I 
for confirmation, by the King, the finding and sentence, where a I 
commissioned officer (e) is sentenced to death, penal servitude, 
cashiering, or dismissal. An officer commanding a force on active- 
service serving in India, or proceeding from India, usually holds his 
warrant from the Commander-in-Chief in India ; but if he comes, 
under the command of an officer holding a warrant from the King., 
he can only exercise the confirming power by delegation from that 
officer. 

96. Every officer empowered to convene general courts-martial 
has, by virtue of the Army Act, authority to confirm the findings | 
and sentences of district courts-martial, and to delegate that, 
power ( / ). 

97. The confirming authority can order a revision once only ; 
and the court must re-assemble and consider, without taking ad- r 
ditional evidence, either the finding or the sentence, or both of} 
them, as directed. If the finding only is sent back, and the court 
do not adhere to it, the court must also reconsider their sentence ; 



(a) Army Act, s. 54 (1) (a). 

(b) Army Act, s. 54 (1) (c), and s. 123. 

(c) Army Act, s. 54 (1) (b), and s. 122. As to field general courts-martial, see 
s. 54 (I) (d), and Rule 119. 

(d) See para. 22, above. As to promulgation of proceedings, see Eule 53, and 
K.R., para. 593. 

(e) This does not apply to a native commissioned officer in a colony, the finding 
and sentence on whom may, in all cases, be confirmed by the general officer com- 
manding the forces in such colony, or at his option reserved for confirmation by 
the King. 

(/) Army Act, 3. 123 (1) (c). ] 



Proceedings subsequent to Finding. 53 

"but if the sentence only is sent back, they cannot revise the Ch. V. 
.1 finding (g). On revision the court cannot for any reason increase ~~" 
| the sentence (/<). If the court adhere to their finding and sentence, 
the confirming authority can only either confirm or refuse confir- 
mation. A conviction and sentence are not valid until confirmation, 
and therefore a refusal of confirmation in effect annuls the whole 
proceeding, except where confirmation is withheld wholly or partly 
for the purpose of referring to superior authority (a). 

98. The confirming authority can, when confirming the sentence, Mitigation, 
whether after revision or without it, mitigate, remit, commute, and'com"' 
or suspend the punishment (6). After confirmation the punishment mutation of 
can only be mitigated, remitted, or commuted by the King, or the P um 'sh- 
Commander-in-Chief (when that office is in existence), or the 

officer commanding the district or station where the prisoner is, 
or any officer specified in the Army Act or prescribed by the 
Rules of Procedure for the purpose (c). But as this power 
cannot be exercised by any officer inferior to the authority who 
confirmed the sentence, an officer in the United Kingdom has 
no power to mitigate, remit, or commute a sentence passed by 
a, general court-martial in the United Kingdom ; and in the 
case of any court-martial held elsewhere, can only do so if his 
command is not inferior to that of the officer who confirmed the 
sentence, unless in either case he acts under orders from superior 
authority (d). 

99. Sentence of death in a colony requires not only confirmation Approval of 
by the military authority, but also (save when passed in respect of'deatif in 
of an offence committed on active service) approval by the governor colony. 

of the colony. In India, however, such approval is only required 
where the offence is treason or murder ; but both in India and a 
colony a sentence of penal servitude for any offence tried as a civil 
offence under s. 41, requires the approval of the governor. The 
approval is required to be given in India by the Governor- 
<j!eneral (e). 

100. An officer who confirms a sentence is responsible for seeing Directions 
that the sentence is carried into effect, and for this purpose he will, tj^^f 011 " 
where necessary, obtain the approval above required for a sentence sentence, 
of death, and in all cases will give the necessary directions for the 

| execution of the sentence. If the sentence is approved by the 
King these directions will be given by the Army Council. 

101. Sentences of penal servitude, wherever passed, are (subject Execution 
to the proviso mentioned in para. 103) required to be executed in of ptnaT 06 
the United Kingdom, and have the same effect as sentences of servitude. 
penal servitude passed by a civil court in the United Kingdom. 
Provision is made for bringing a penal servitude prisoner from 

any place out of the United Kingdom to a prison in the United 
Kingdom ; and when once he is there he comes under the authority 
of the Home Secretary (/). 

I (a) Army Act, s. 54 (5) (6), and note. As to the principles on which the power of 
^commutation or mitigation is to be exercised, and remarks by confirming officer 
and promulgation, see K.R., paras. 588, 589, 590, Army Act, s. 53 (9), Rules 53, 97 (A) 
note. A refusal to confirm should be signified in writing on the proceedings signed 
'by the confirming authority, and the reasons for the refusal may be stated, see Form 
in Appendix II to Rules para. (14), p. 579; see also para. 5, above. 

(b) Army Act, s. 57 (1), and note. Rule 54. 

(c) Army Act, s. 57 (2) ; and as to prescribed officer, see Rule 126, (C). 
a (d) Army Act, s 57 (3). 

(e) Army Act, s. 54 (4) (7) (8) (9). 
(/) Army Act. ss. 58-62, K.R., paras. 602-606. 
for) Army Act, s. 54 (2), Rule 52. 
| (A) Army Act, s. 54 (2), Rule 51, note. 



54 



COURTS-MARTIAL. 



Oh. V. 

Of im- 
prisonment 



Of deten- 
tion. 



Further 
provisions. 



102. Sentences of imprisonment exceeding twelve months, 
wherever passed, are also (subject to the proviso mentioned in 
para. 104) to be executed in the United Kingdom. If not brought 
to the United Kingdom, a prisoner has to undergo his imprison- 
ment either in military custody, or in some authorised prison, 
or in a detention barrack (a). He can, however, be temporarily 
confined in any other prison. 

103. Sentences of detention exceeding twelve months must 
(subject to the proviso mentioned in para. 104) also be executed 
in the United Kingdom. Detention has to be undergone either in 
military custody, or in a detention barrack, but a soldier sentenced 
to detention cannot be confined in a prison. In the United Kingdom 
sentences of detention may be undergone in a branch detention 
barrack, or barrack detention rooms ; but where they exceed 
fourteen days, should be carried out in a detention barrack (b). 

104. An offender sentenced to penal servitude, imprisonment, or 
detention, need not be brought to the United Kingdom, if he 
belongs to a class with respect to which the Secretary of State has 
declared that by reason of climate or place of birth or of enlist- 
ment, it is not beneficial to the offender to transfer him to the 
United Kingdom. Nor need an offender sentenced to imprison- 
ment or detention be brought to the United Kingdom, if the court I 
or other authority mentioned in s. 131 for special reasons other- 
wise orders (c). 



(a) Army Act, ss. 63-66. E.R., paras. 607, 645, and see for the mode in which a| 
term of imprisonment is to be awarded, E..R., para. 585, and generally as to disposal 
of military convicts, military prisoners, and soldiers undergoing detention, &c., 
K.B., paras. 600-644. | 

(b) Armv Act, s. 63 ; and K.R. para. 645. 

(c) Army Act, s. 131 (2), the note to which states the regulations made by the 
Secretary, of State. 



55 



CHAPTER VI. 

EVIDENCE. 

Introductory. 

1. The rules of evidence are the rules which regulate the mode Meaning of 
in which questions of fact may be determined for judicial purposes, ^dence.* 
The object of every criminal trial is, or may be, to determine two 

classes of questions questions of fact and questions of law. If the 
accused person pleads guilty, there is no question of fact involved 
in the trial ; but if he does not, he raises two questions or issues : 
first, whether .the facts charged against him happened ; and next, 
if they did happen, what is their legal consequence. 

2. In trial by jury, these two questions are answered by English 
different persons. The jury, under the guidance of the jicdge, find evidence 
the facts. The judge lays down the law. It was with reference primarily 
to trial by jury that the English rules of evidence were originally ^t^uly 
framed, and it is to this mode of trial that they are still primarily jury, 
applicable. They are, in fact, the rules in accordance with which 

a judge guides a jury. In trials before courts-martial, the members- 
of the courts both find the facts and lay down the law, and thus- 
perform the functions of both jury and judge. It therefore 
becomes their duty, when applying their minds to questions of 
fact, in the capacity of jurymen, to consider themselves bound by 
the rules which, in the case of an ordinary trial by jury, are laid 
down by the judge. 

3. Now, a juryman is supposed to bring with him to the con- Nature of 
sideration of the questions which he has to try common sense, and a evldence - 
general knowledge of human nature and of the ways of the world. 

But he is not supposed to bring with him an} 7 special knowledge 
enabling him to answer the particular questions of fact raised in 
the trial. His knowledge of these matters is derived from what is 
proved to him at the hearing. The means of proof, or evidence, 
usually consists of statements made by witnesses under exami- 
nation, or of documents produced for inspection, and is therefore 
commonly classified as being either oral evidence or documentary 
evidence. But the jury, or, in the case of trials by court-martial the 
members of the court, may supplement by direct information the 
knowledge derived from these sources. Thus they may inspect for 
themselves anything sufficiently identified by evidence, and pro- 
duced in court as material to their decision ; or they may go to 
view any place the sight of which may help them to understand 
the evidence. 

4. There is no difference in principle between the method of ^tween 06 
inquiry in judicial and in extra-judicial proceedings. In either judicial and 
case a person who wishes to find out whether a particular event non-judicial 
did or did not happen tries, in the first place, to obtain information mqui 
from persons who were present and saw what happened (direct 
evidence), and, failing that, to obtain information from persons who 

can tell him about facts from which he can draw an inference as to 
whether the event did or did not happen (indirect evidence). But 



56 



EVIDENCE. 



Ch. VI 



Reasons for 
excluding 
certain 
classes of 
evidence in 
judicial 
inquiry. 



Evidence in 
courts- 
martial to 
be governed 
by English 
law. 



Matters 
with which 
rules of 
evidence 
are con- 
cerned. 



in judicial inquiries the information given must be on oath, and be 
liable to be tested by cross-examination, and there are certain rules 
of law which exclude from the consideration of a jury particular 
classes of indirect evidence which an ordinary inquirer would 
naturally take into consideration. Statements so excluded are said 
to be " not admissible as evidence," or " not evidence " (a). And if 
a member of a court-martial is in doubt whether a statement which 
it is proposed to make to him is, or is not, admissible as evidence, the 
most useful advice that can be given to him is, first to use his 
common sense as to whether the matter proposed to be proved has 
any practical bearing on the question which he has to try, and, if 
he thinks that it has, then to consider whether it falls within any 
one of the negative or exclusive rules of law to which reference has 
been made. 

5. The answer to the question why particular statements should 
be excluded from evidence in judicial inquiries is that their 
exclusion has been found by practical experience useful on various 
grounds, and notably on the following : 

1. It assists the jury. 

2. It secures fair play to the accused. 

3. It protects absent persons. 

4. It prevents waste of time. 

It assists the jury by concentrating their attention on the 
questions immediately before them, and preventing them from 
being distracted or bewildered by facts which either have no 
bearing on the questions before them, or" have so remote a 
bearing on those questions as to be practically useless as guides to 
the truth, and from being misled by statements, the effect of 
which, through the prejudice which they excite, is out of all propor- 
tion to their true weight. It secures fair play to the accused, 
l>ecause he comes to the trial prepared to meet a specific charge, 
and ought not to be suddenly confronted by statements which he 
had no reason to expect would be made against him. It protects 
absent persons against statements affecting their characters. And, 
lastly, it prevents the infinite waste of time which would ensue if 
the discussion of a question of fact in a court were allowed to 
branch oat into all the subjects with which that fact is more or less 
connected. 

6. The rules of evidence to be followed by courts-martial are to 
be those adopted in courts of ordinary criminal jurisdiction in 
England (b). These rules are to be found in the ordinary text- 
books on the subject, such as Taylor on Evidence, Eoscoe's^Digest 
of the Law of Evidence in Criminal Cases, Stephen's Digest of the 
Law of Evidence, and Wills' Theory and Practice of the Law of 
Evidence ; but as only a limited number of these rules are from 
the nature of the case applicable to proceedings before courts- 
martial, it is thought that it may be useful to state and illustrate 
shortly the most important of those which are so applicable. 

7. The principal matters with which the rules of evidence are 
concerned may, for the purpose of this chapter, be classified 
as follows : 

(i.) What must be proved. 
(ii.) What facts are assumed to be known (judicial notice). 

(a) The two phrases illustrate the wider and narrower sense of the term " evidence." 
In its narrower sense it means that kind of J evidence which is recognised by courts 
of law. 

(b) Army Act, ss. 127 and 128 ; Criminal Evidence Act, 1898 (61 <fe 62 Viet., c. 36) ; 
and IJule 73. 



What must be proved. 57 

(iii.) By which side prooj must be given (burden of proof). Ch. VI. 

(iv.) What statements are admissible as evidence (admissibility 

of evidence). 
(v.J Wken admissions or confessions may be admitted as 

evidence. 

(vi.) W/io may give evidence (competency of witnesses). 
(vii.) What questions need not be answered and what documents 

n<j.ed not be produced (privilege of witnesses), 
(viii.) How evidence is to be given. 

(i.) What must be proved. 

8. What must be proved, in order to obtain a conviction, is the Charge 
particular charge brought As a general rule, every charge alleges, brou g ht 
or ought to allege, a specific offence constituting a breach of a 
specific enactment (a) ; and, subject to certain exceptions, it is of this 
offence, and of this offence alone, that the person charged can be 
convicted. The reason for the rule is the unfairness of requiring a 
person to meet a charge for which he is not prepared. And the 
exceptions will be found not to conflict with this reason, since they 
relate either to cases where the distinction between two offences is 
mainly technical ; or to cases where the distinction is one of degree, 

but not of kind, and the accused, having been charged with the 
more serious, is allowed to be convicted of the less serious offence (6). 
The former class of cases is illustrated by the enactments providing 
that a person charged with felony may, in certain cases, be con- 
victed of a misdemeanour ; and that a person charged with stealing 
may be convicted of embezzlement, and vice versa. The second 
class is illustrated by the common law rule that on an indictment 
for murder, if the prosecutor fails in proving malice prepense, the 
accused may be convicted of manslaughter ; and by the provisions 
contained in s. 56 (3) (5) of the Army Act. 

9. It is the substance only of the charge that need be proved. Substance 
Allegations which are not essential to constitute the offence, and onI J r of 
which may be omitted without affecting the validity of the charge, e 

do not require proof, and may be rejected as surplusage (c). In 
some cases, as in charges against a sentinel for misbehaviour on 
his post, or in a charge for not giving immediate notice of 
desertion (d), the time or place of the offence is material ; but as a 
rule it is not so. Where the court think that the facts proved differ 
materially from the facts alleged, but prove the same charge, they 
are empowered by Rule 44 (B) to record a special finding, instead 
of a finding of " Not guilty." 

(ii.) What facts are assumed to be known. 

10. The court are said to take judicial notice, in other words not Judicial 
to require evidence, of any facts which are so generally known as notice, 
not to require special proof. By Rule 74 the court are expressly 
authorised to take judicial notice of all matters of notoriety, 
including all matters within their general military knowledge. 

(a) See Rules 9-12, and 23. As to offences of conduct to the prejudice of good 
order and military discipline, see s. 40 of the Army Act, and ch. Ill, para. 32. 

(Ii) The provision in s. 56 (4) of the Army Act, which allows a person charged with 
I attempting to desert to lie found guilty of desertion, cannot be placed under either 
I of these heads of exceptions, but is in a class by itself. 

(c) See Rules 9-12, and 23, and as to particulars of time and place in the charge, 
see Note as to use of Forms of Charges (18)-(22), at the beginning of Appendix I 
to the Rules, pp. 531, 532. 

(rf) See Army Act, ss. 6 (1) (k), 14 (2). 



58 



EVIDENCE. 



Matters of 
which 
judicial 
notice will 
be taken. 



Ch. VI. Thus, evidence need not be given as to the relative rank of officers, 
as to the general duties, authorities, and obligations of different 
members of the service, or generally as to any matters which an 
officer, as such, may reasonably be expected to know (a). Nor, 
again, would it be necessary to prove that an important battle was 
fought on the 18th of June, 1815. 

11. Among the matters of which it is the duty of all judges to 
take judicial notice may be mentioned : Acts of Parliament : the 
general course of proceedings and privileges of Parliament, the date 
and place of the sittings of each House, but not transactions in 
their journals ; the course of proceedings and rules of practice in 
the Supreme Court of Judicature ; the accession of the King ; 
the existence and title of every State and Sovereign recognised by 
the King ; the Great Seal, the Privy Seal, the Seals of the Superior 
Court of Justice ; the seal of any notary-public in the British 
Dominions, and various other seals ; the extent of the territories 
under the dominion of the Crown, and the territorial and political 
divisions of the different parts of the United Kingdom ; the ordinary 
course of nature, natural and artificial divisions of time, and the 
meaning of English words ; and all other matters which they are 
directed by any statute to notice. 



(iii.) By which side Proof must be given. 

Burden of 12. In considering the practice as to the burden of proof regard 
proof. must be had to two rules ; Jirst, that every man is presumed to be 

innocent until he is proved to be guilty ; and, second, that he who 
alleges a fact must prove it, whether the allegation is couched in 
affirmative or negative terms. It follows from both these rules 
that it is incumbent on the prosecution in the first instance to give 
evidence of the commission of the offence, and connecting the 
accused with the commission, and that then, but not till then, the 
accused is bound to prove any facts from which he wishes the 
court to infer his innocence. The rule that he who alleges a fact 
must prove it, even though the allegation is couched in negative 
terms, is subject to two exceptions : 

(1) Some statutes expressly provide that the proof of lawful 

excuse, or authority, or the absence of fraudulent intent, 
shall lie on the person charged, although by the terms in 
which the offence is defined they are expressly made 
elements of the offence, as in the statute making it criminal 
to be found by night in the possession of housebreaking 
implements without lawful excuse (6) ; 

(2) Where the subject of the negative assertion is peculiarly 

within the knowledge of the accused, he must prove it as 
a matter of defence. For instance, in a charge of leaving 
the ranks or a post without orders, absence without 
leave, releasing a person without authority, or detaining 
a person unnecessarily (c), it would lie on the person 
charged to prove that the requisite orders, leave or 
authority had been given, or that the necessity existed. 
On the other hand, when a soldier is charged with 



(a) See s. 6 (1) (), 8, 10 (3), 17 and 25 (1), of the Army Act, as illustrations of 
matters which would be presumed to be within the general military knowledge 
of an officer. 

(b) Larceny Act, 1861 (24 & 25 Viet., c. 96), s 58. 

(c) See Army Act, ss. 5 (1), 6 (1) (6), 15, 20 (1), 21 (1). 



Admissibility of Evidence. 59 

breaking out of barracks (), it would lie on the prose- Ch. VI. 
cutor in the first instance to prove that the accused 
had no right to quit them. 

13. As the trial goes on, the burden of proof may be shifted ^^"^ 
from the prosecutor to the accused by the proof of facts which pr0 of. 
raise a presumption of his guilt. Thus A. is accused of stealing 

a five-pound note. The burden of proof is on the prosecution. 
He is shown to be in possession of the note soon after the fact. 
The burden of proof is shifted to A. A. shows that the note was 
given him in change for a ten-pound note. The burden of proof 
is shifted to the prosecution. 

14. Where it is proved that an unlawful act has been com- Presump- 
mitted, a criminal intention is presumed, and the proof of justification ^g n t from 
or excuse lies on the accused. On a charge of murder the law unlawful 
presumes malice from the act of killing, and throws on the accused aot - 

the burden of disproving the malice by justifying or extenuating 
the act. On a charge of wilfully maiming or injuring with intent 
to render unfit for service, the intent will be presumed if it is shown 
that the act was wilfully done (6). 

(iv.) What statements are admissible as Evidence. 

15. It has been remarked above that there are certain rules Rules as to 
which exclude from consideration on judicial inquiries classes of jjfj* 8 ^ 1 / 
evidence which would be taken into consideration on ordinary evidence, 
inquiries The most important of these negative or exclusive rules 

may, with reference to criminal proceedings, be stated as follows : 

I. Nothing shall be admitted as evidence which does not tend Rule of 
immediately to prove or disprove the charge. relevancy. 

II. The evidence produced must be the best obtainable under Rule of best 

the circumstances. 
To these may be added, subject to important qualifications : 

III. Hearsay is not evidence. Hearsay. 

IV. Opinion is not evidence. Opinion. 

16. The form in which the first rule is expressed shows the I. Rule of 
vagueness, and, it may be added, the necessary vagueness, of its relevancy, 
character. What classes of facts "tend immediately" to prove 

or disprove a charge ? Or, to use a more technical expression (c), 
what facts are " relevant " ? To this question no direct answer can 
be given. No precise line can be drawn between ' ' relevant ): and 
" irrelevant :) facts. All that can be done is to state certain sub- 
ordinate rules illustrating the kind of line which experience has 
induced courts to draw with respect to particular classes of facts. 
Common sense must supply the rest. 

17. In the first place the character or general reputation of the ^^ n 
accused person is not admissible as evidence of his guilt. This rule evidence for 

is most important to prevent the injustice which might arise from P rosecu - 

T i -j />! 11 tion. 

prejudice or unpopularity. Crive a dog a bad. name ana hang 

him," represents the popular instinct. " A man shall not be con- 
victed because he has a bad name," says the law. For this reason 
the prosecutor may not give evidence of character, except to rebut 
evidence to a contrary effect given on behalf of the accused (</). 

. _ 

(a) Army Act s. 10 (4), 
(6) See Army Act s. 18 (2). 

(c) See Rule 73 (A). 

(d) As to reply to witnesses to character called by the accused, see Rules 40 (3) 
(E), S6 (C). The Court may also, after conviction, for their guidance in determin- 
ing the sentence, take evidence as to the character of the accused (Rule 46). 







EVIDENCE. 



Ch. VI. 

Character 
admissible 
as evidence 
for defence. 



Effect of 
evidence as 
to charac- 
ter. 



Evidence of 
facts tend- 
ing to show 
general 
disposition 
not admis- 
sible. 



Where 
several 
offences 
connected, 
evidence of 
one admis- 
sible as 
proof of 
another. 



18. On the other hand, the accused may call witnesses to speak 
generally as to his character. The evidence, however, of such 
witnesses must be confined to the general reputation of the accused 
for good character, and evidence of particular cases of praiseworthy 
conduct in the accused is not properly admissible. This general 
reputation for good character may be evidenced by showing that 
the record of the accused in the conduct book is good, or that his 
superior officers have publicly approved of the way in which he has 
conducted himself while in the service. 

19. Evidence of general good character cannot avail the accused 
against evidence of the fact, but where some reasonable doubt 
exists as to his guilt, it may tend to strengthen a presumption 
of innocence ; and where intention is a principal ingredient in the 
offence, or where presumptive proof only is adduced, evidence as 
to character, bearing on the charge, may be highly important, and 
serve to explain the conduct of the accused. On a trial for treason, 
Lord Kenyon obsei-ved, "An affectionate and warm evidence of 
character, when collected together, should make a strong impres- 
sion in favour of a prisoner ; and when those who give such a 
character in evidence are entitled to credit, their testimony should 
have great weight with the jury." On a charge of murder, where 
malice is the essence of the crime, expressions of goodwill and acts 
of kindness by the accused towards the deceased are always 
considered important evidence, as showing what was his general dis- 
position towards the deceased, and leading to the conclusion that his 
intention could not have been that imputed to him. On a charge 
of stealing, character for honesty may be entitled to great weight. 
So also on a charge implicating the courage of a soldier, character 
for bravery and resolution might be of vast importance. But 
it would be manifestly absurd and irrelevant, on a charge of 
stealing, to allow character for bravery to weigh in the scale of 
proof ; or on a charge of cowardice, to be biassed by a character 
of honesty. General character, unconnected with the charge, 
though it may not weigh with the court, except in awarding 
punishment in discretionary cases, may essentially serve the 
accused, by influencing the superior with whom it rests to 
mitigate or remit the sentence. 

20. Evidence that the person accused of an offence committed 
a like offence or acted in a similar manner on another occasion, is not 
admissible merely for the purpose of showing that he has a general 
disposition to commit such offences. Thus, on a charge of murder, 
the prosecutor cannot give evidence of the conduct of the accused 
in respect of other persons for the purpose of proving a blood- 
thirsty and murderous disposition. So, on a charge against a sentry 
of having been asleep on his post on a particular occasion, evidence 
that he had been found asleep on his post on other occasions 
would not be admissible for the purpose of showing that he would 
be likely to commit the offence ; and on a charge of insubordination, 
evidence of insubordinate conduct on other occasions would not be 
admissible for the purpose of showing a tendency to insubordinate 
conduct (a). 

21. But where several offences are so connected with each other 
as to form part of an entire transaction, evidence of one is 
admissible as proof of another. On a charge of stealing, for 
example, though it is not material in general to inquire into any 



(a) See, however, below, para. 93 (A). 



Admissibility of Evidence. 61 

other taking of goods besides that specified in the charge, yet Ch. VI. 
for the purpose of ascertaining the identity of the person, it is 
often important to show that other goods which had been upon an 
adjoining part of the same house and grounds were taken in the 
same night, and afterwards found in the possession of the accused. 
This is strong evidence of the accused having been near the owner's 
house on the night of the robbery ; and from that point of view it 
is material. Thus, also, to prove the crime of arson, it may be 
shown that property which had been taken out of the house at the 
time of the firing was afterwards found secreted in the possession 
of the accused. So, on a charge of desertion, it may be admis- 
sible to inquire into the fact of (not the facts attending) a 
highway robbery which had been committed by the accused on the 
.night on which he absented himself, and for which he had been 
'tried and convicted by a civil court. The crime of desertion, 
depending on the intention not to return, might be inferred, in 
connection with other circumstances, from the commission of a 
heinous offence ; and such collateral evidence is admissible to 
prove the intention of the accused. 

I 22. And where intention, knowledge, belief, malice, or any Pacts show- 
other state of mind, is a necessary ingredient of the offence !" g 'f^ 1 ' a 
charged, the commission of the principal act being either admitted i e dge,belief, 
or proved, evidence may, for the purpose of proving the existence &c - 
of such a state of mind in reference to the particular matter in 
question, be given of similar acts committed by the accused on 
different occasions. Thus, although on a charge of murder 
evidence as to the disposition of the accused, is, as has been stated, 
inadmissible, j r et former attempts by him to assassinate the 
deceased are admissible as a proof of intention. So also evidence 
is admissible as to former menaces or expressions of vindictive 
feeling towards the deceased. Again, on a charge of uttering 
base coin, proof that the accused uttered base coin on other 
occasions is admissible as evidence that he knew the coin to be 
base ; and on a charge of obtaining credit by means of fraud, 
where it was proved that the accused hired furnished apartments 
and left them without paying for them, evidence that he had also 
gone to other houses and left without paying was held admis- 
sible as negativing the existence of any reasonable or honest 
motive (a). 

23. In support of a charge for malicious, disrespectful, or unbe- Facts show- 
coming language, addressed by word of mouth, or written to, or j^V 1 * 611 " 
used of, a superior officer at a stated time, or in a particular letter, (further 
after having proved the words in the charge, the prosecutor, to il lustra ~ 
show the spirit and intention of the accused, may prove also that t! 
he spoke or wrote either disrespectful or malicious words on the 
same subject, either before or afterwards, or that he published or 
disseminated copies of the letter set forth as disrespectful in the 
charge. This evidence is admissible, not in aggravation of the 
offence charged, but for the purpose of proving the deliberate malice 
or disrespect imputed in the charge ; and the accused may give in 
evidence, as negativing a deliberate purpose, or as palliating, though 
not justifying his conduct, that he had been provoked to act as he 
had by the conduct of his superior towards him. So, on an 
indictment for malicious shooting, if it is questionable whether 
the shooting was by accident or design, proof may be given that at 
another time the accused intentionally shot at the same person. 

| (a) E. v. Wyatt, L.E. [1904] 1 K. B., 188. 



62 



EVIDENCE. 



Ch. VI. 

p ' " 

ing inten- 
tion; 

ilhistra- 
tious;. 



Evidence as 



tion, sub- 
sequent 

conduct, or 

conse- 
quences 

' e ' 



Acts of con- 
spirators. 



Statements 
not forming 

conspiracy 
inadmis- 



Illustra- 

evidence 
admissible 



4. Where the charge is of a nature which makes the intention 
a principal issue, as where a person is charged with treason, or 
with a design to undermine the influence of the commanding 
officer, an inquiry may be allowed into the conduct and sentiments 
^ ^ ne accused on particular occasions, but with reference only 
to the overt act laid or specified in the charge, and to the 
transactions proved against him. The intention of one particular 
act may be best evinced by other contemporaneous actions, but 
great caution is needed to prevent injustice to the accused by 
extending the inquiry to matters wholly unconnected with the 
charge. It would be the height of injustice to allow such an 
attack upon him as would involve the necessity of his entering 
unprepared and at once on the defence of every action of his life. 

25. Again, where there is a question whether a person com- 
niitted an offence, evidence may be given of any fact supplying a 
motive or constituting preparation for the offence, of any subse- 
quent conduct of the person accused, which is apparently influenced 

,, . . , , ~. i r j i_ i_ 

by the commission of the offence, and of any act done by him, or 
]yy n j s authority, in consequence of the offence. Thus, evidence 
may be given that, after the commission of the alleged offence, the 
accused absconded, or was in possession of the property, or the 
proceeds of property, acquired by the offence, or that he attempted 
to conceal things which were or might have been used in committing 
the offence, or as to the manner in which he conducted himself when 
statements were made in his presence and hearing. 

26. In cases of conspiracy, after primd facie evidence has been 
given of the existence of the plot, and of the connection of the 
accused therewith, the charge against one conspirator may be 
supported by evidence of anything done, written, or said, not 
only by him, but by any other of the conspirators, in furtherance 
of the common purpose. Thus on the consideration of a charge of 
mutiny, or exciting mutiny, evidence of this kind may, after such 
primd facie proof, be received against a particular one of the accused. 

27. Statements of the class above described are admissible as 
evidence, if they are made in execution of the common purpose, 
because they form part of the transaction to which the inquiry 
relates (a). But a statement made by one conspirator, not in 
execution of the common purpose, but in narration of some event 
forming part of the conspiracy, falls within the rule of hearsay, 
to which reference will be made hereafter, and is not admissible as 
evidence against another conspirator, unless made in his presence (6). 
In consequence of this distinction, the admissibility of writings 
often depends on the time when they are proved to be in the 
possession of fellow conspirators, whether it was before or after 
the apprehension of the accused. 

28. Thus, on the trial of a person for a treasonable conspiracy, 
some papers, containing a variety of plans and lists of names, 
which had been found in the house of a co-conspirator, and which 
nac ^ a re ^ erence to the design of the conspiracy, and were in fur- 
therance of the plot, were held to be admissible as evidence against 
the accused. All the judges were of opinion that these papers 
ought to be received in the case, inasmuch as there was strong 
presumptive evidence that they were in the house of the co- 
conspirator before the apprehension of the accused, for the room 
in which the papers were found had been locked up by one of the 



(a> See below, paras. 51, 52. 

(b) See R. v. Slake, 6 Q.B., 126 ; Stephen Dig. Ev.,p. 6 and 7 ; Wills, pp. 116 et seq. 



Admissibility of Evidence. 63 

conspirators. And the judges distinguished the point in this case Ch. VI. 
from a case cited where the papers were found, after the apprehen- 
sion of the accused, in the possession of persons who possibly might 
not have obtained the papers until afterwards. 

29. As in trials for conspiracies, whatever the accused may have Acts an( } 
done or said at any meeting alleged to have been held in pursuance O f accused 
of the conspiracy may be given in evidence against him on the when evi- 
part of the prosecution, so, on the other hand, any other part of ^i^ c f n fo1 
his conduct at the same meeting will be allowed to be proved in conspiracy 
his behalf : for his intention and design at a particular time are best cases, 
explained by a complete view of every part of his conduct at that 

time, and not merely from the proof of a single isolated act or 
declaration. 

30. The meaning of the rule that the evidence produced must be n. Rule as 
the best obtainable under the circumstances, is this. No evidence evidence 
which leads us to suppose that other and better evidence remains 
behind can have any weight, as the production of such inferior 
evidence suggests that there is some secret or sinister motive for 
withholding the better and more satisfactory evidence. 

31. The rule in question is more strictly enforced with regard Rule chiefly 
to documentary evidence than with regard to oral evidence, and ^ ^o^ 16 
is usually applied in the form of the two well-known sub-rules : ments. 

(1) That a verbal account of the contents of a document can never primary 
be received if the document itself is obtainable : (2) That, and 
subject to certain exceptions, a copy of a document is not admissible evidence^ 
when the original document can be produced. In these cases the 
document itself is said to be primary, whilst the verbal account, 
or the copy, is called secondary evidence. 

32. Primary evidence of the contents of a document is given by Primary 

producing the document for the inspection of the court. evidence of 

document. 

33. If the document is of a kind which is required by law to be Attested 
attested, but not otherwise (a), it is also necessary to call an and un ~ 
attesting witness to prove its due execxition. But this rule is subject documents. 
. to the following exceptions : 

(a) If it is proved that there is no attesting witness alive, and 
capable of giving evidence, then it is sufficient to prove 
that the attestation of at least one attesting witness is in 
his handwriting, and that the signature of the person 
executing the document is in the handwriting of that 
person. 

(6) If the document is proved, or purports to be, more than 
thirty years old, and is produced from what the court 
considers to be its proper custody, an attesting witness 
need not be called, and it will be presumed without 
evidence that the instrument was duly executed and 
attested. 

34. The rule as to the madnrissibility of a copy of a document Distinction 
is applied much more strictly to private than to public or official between 
documents. ffu 

meats. 

35. Secondary evidence may be given of the contents of a private Secondary 
document in the following cases : 

(a) Where the original is shown or appears to be in the possession documents, 
of the adverse party, and he, after having been served when 
with reasonable notice to produce it, does not do so. 

(a) 28 & 29 Viet., c. 18, ss. 1, 7. 



64 EVIDENCE. 

Ch. VI. (6) Where the original is shown or appears t<> be in the possession 
or power of a stranger not legally bound to product- it, 
and he, after having been served with a writ of fiibfxrntr 
duces ti'cum, or after having been sworn as a witness am! 
asked for the document, and having admitted that it is in 
court, refuses to produce it. 

(c) Where it is shown that proper search has been made for 
the original, and there is reason for believing that it is 
destroyed or lost. 

((/) Where the original is of such a nature as not to be easily 
movable (), or is in a country from which it is not per- 
mitted to be removed. 

(e) Where the original is a document for the proof of which 
special provision is made by any Act of Parliament, or 
any law in force for the time being (b). 

(/) Where the document is an entry in a banker's book, provable 
according to the special provisions of the Bankers' Books. 
Evidence Act, 1879 (42 & 43 Viet., c. 11). 

Secondary 36. Secondary evidence of a private document is usually given 
private 06 either by producing a copy and calling a witness who can prove 
documents, the copy to be correct, or when there is no copy obtainable, by 
how given, calling a witness who has seen the document, and can give an 

account of its contents. 

Publicdocu- 37. No general definition of public documents is possible, but the 
deeTned What ru ^ es f evidence applicable to public documents are expressly 
to be. applied by statute to many classes of documents. Primary evidence 

Primary of any public document may be given by producing the document 
and secon- from proper custody, and by a witness identifying it as being what 
evidence of & professes to be. Public documents may always be proved by 
public docu- secondary evidence, but the particular kind of secondary evidence 
required is in many cases defined by statute. Where a document 
is of such a public nature as to be admissible in evidence on its 
mere production from the proper custody, and no statute exists 
which renders its contents provable by means of a copy, any copy 
thereof or extract therefrom is admissible as proof of its contents,, 
if it is proved to be an examined copy or extract, or purports to- 
be signed and certified as a true copy or extract by the officer to 
whose custody the original is intrusted (c). 

Certified 38. It is provided by many statutes that various certificates, 

official and public documents, documents and proceedings of cor- 
porations and of joint stock and other companies, and certified copies 
of documents, bye-laws, entries in registers and other books, shall 
be receivable as evidence of certain particulars in courts of justice, 
if they are authenticated in the manner prescribed by the statutes. 
Whenever, by virtue of any such provision, any such certificate or 
certified copy is receivable as proof of any particular in any court 
of justice, it is admissible as evidence, if it purports to be authenti- 
cated in the manner prescribed by law, without calling any witness, 
to prove any stamp, seal, or signature required for its authentication, 
or to prove the official character of the person who appears to have 
signed it (d). 



(a) e.g., a placard posted on a wall, or a tombstone. 

(b) These are practically treated on the same footing as public documents. 

(c) 14 <fc 15 Viet., c. 99, s. 14. 

(rf) 8 & 9 Viet., c. 113, preamble, and s. 1, and Steph., Dig. Ev., art. 79. A certi- 
ficate, &c., so receivable is merely handed in to the Court by the party producing it. 



Circumstantial tioiik., fJ5 



39. tinder ., 2 of the Documentary Evidence Ad, IM;.S c;| & Ch. VI. 

32 Viet,, c. : > ,7) J primd facie evidence of any prociamalion, order, p r(n ^, ns 

or regulation issued by His Majesty, or by the Privy Council, also O f DOCU- 

v procliimatioli, order, or re'julat ion issued by Or under the "i'-ntary 

authority of any such department "f the < lovi-rnmeni or officer as ActaTto 3 

i.-: mi lit ioii"d in tin- lir.,t column of the schedule lo tie- Act (a), certain 
may bo o/i ven in ;dl coui-l:-; of justice, and in all le^al proceedings, dooumentBi 
whai , in all or any of the following modes. -(I.) I'.y the 

production of a, copy of the (,'nz<;t.l<>, purporting to contain the 
proclamation, order, or regulation: (2.) 15y the production of a 

.opy ( ,f the proclamation, order, or regulation put -port in-; to be 

printed bv (he ( ioveriinn-nt prinler (/>), or, when- the (|Uestioii 

i ; in a. loiirl, in any llriti.-.li colony or possession, of a copy 

purport imj; lo be printed under the authority of the legislature ,,f 

that colony or po, session : ('.'..) \',y the production, in the case of 

any proclamation, order, or regulation issued (i) by His Majesty, 

the IYi\ . Council, or (ii) by any of the departments specified in 

the schedule, of a copy <>r extract purporting to be certified as true 
either ('i) by Ihe eld I. or any Lord of the L'rivy Council, or (ii) 
by the proper cei I il'yinjr oHiccr specified in the second column of 

the schedule. 

Any copy or extract made in pursuance of the Act maybe in 
print or in writing, or partly in print and partly in writing; and 
no proof is re(|uired of the handwriting or ollicial position of any 
person certifying in pursuance of the Act, to the truth of any copy 
of or extract from any proclamation, order, or regulation. 

40. Special provision is made by the Army Act for proving, by Special pro- 
means of copies, attestation papers on enlistment, Kind's Regula- AjmyAct 
lions, lloyal Warrants, and rules, warrants, and orders made in as to'docu- 
pursuance of Ihe Act, records iu reo-Jmeiilal books, ami proceedings provable by 
of COUrtS marl ia.l (<:). copies. 

41. In connection with the rule as to best evidence, reference ^ ules a . s to 
may be made lo tin- distinction between direct and indirect ^ence not 
evidence. |;\- direct evidence is meant the statement of a person applicable 
who saw, or otherwise observed with his senses, the fact in question. Jj 

between 

(a) The schedule as supplemented l>y the Documentary Evidence Act, 1895 (58 i nf |i rec t 
Viet., c. V), i.i as follows : evidence. 

Con "N- I. COLUMN II. 

NamC " J ' n'//r l 'r'""'' lt " r Names f Certifying Officer,. 

The Commissioners of the Any Commissioner, Secretary, or Assistant Secretary 

"iy. of the Treasury. 

The Comml loners lor e\e- Any of the Commissioners for executing the office of 

entiu^ the olli.-e ,,|- ],,,,, | I'.oni J I i jj[h A' liu iral, or either of the Secretaries to 

Hij^h Admir.il. the said Commissioner . 

Secretaries of State Any Secretary "r Under S",-! clary of Sti'le, 

of 1'rivy Uonued Any inemher of tin) Committee of I'l i vy Council for 
'Ir.ule. or ;my rieen.-lai-y or Assistant Secretary of 
the said Comiriilt.ee. 
Any Commit inner of the Poor Law Board, or any 

Secretary or Assistant Secretary of the Baid Board. 
'ihe 1'i-e .id.'iit or iiny ni'-inlier of tho Jioard, or the, 

ii h Secretary of the Board, or any person authorised i>v 

1'reside.nt to act on behalf of the y r ei e(;..ry of 
! he lio.ird. 
"I I nder the Documentary i idence Act, 1882 (45448 Viet., c. (9) this expressioii 

hieludis Hla Majesty's Stationery (Hfiee. rite .same Act e.i tended the Doc!. Kvid. 
Act, Hr.ri, 10 in-oei :IIM ,i imi.-,, Ai;., JM^ued by the Lord Lieutenant of Ireland. The 
Aet, of 1898 (58 Viet., c. 9) extended the Act to any documents issued by the 
1 1:0 i: I of Agriculture, now called the Board of Agriculture and Fisheries. 
(<; Army Act, n.1. I'i.'J, Lt)6. 



for Trade. 
The Poor Law 

I Th.- lio.ird .il .' mil 

n h 



* The functions oi ! he 1'oor Law Board were transferred to the Local Government 
i! Mid in 1871. 

(M.L.) 



66 EVIDENCE. 

Ch. VI. 

By indirect, Or as it is often called, circumstantial evidence, is 

meant evidence of facts, from which the fact in question may be 
inferred or presumed. The rule as to best evidence has no 
application to the difference between direct and indirect evidence. 
Direct evidence is not better than indirect or circumstantial 
evidence, the difference between them being one not of degree but 
of kind. 

strenerth'of 42- From the circumstances under which crimes are ordinarily 
circumstan- committed, it follows that direct evidence of their commission is 
tia .' rarely obtainable, and that in the great majority of cases reliance 

must be placed on circumstantial evidence. Such evidence is in no 
way inferior to direct evidence, and is in some respects superior to 
it ; for it has become a proverb that " facts cannot lie," whilst 
witnesses may. On the other hand, it must always be borne in 
mind that if facts cannot " lie," they may, and often do, deceive ; 
in other words, that the interpretation which they appear to 
suggest is not that which ought to be placed upon them. Therefore, 
before the court finds an accused person guilty on circumstantial 
evidence, it must be satisfied not only that the circumstances are 
consistent with the accused having committed the act, but that 
they are inconsistent with any other rational conclusion than that 
the accused was the guilty person (a). 

43- Th e wr iter of a series of papers on the value and danger of 
difference circumstantial evidence, which appeared some years ago in a legal 
between paper (6), states one of the leading rules with respect to this e!;;--s 
bad ch-cum- f evidence as follows : " The facts on which it is sought to found 
stantial " the inference of guilt must be visibly and evidently connected with the 
evidence. "crime" and illustrates the rule by contrasting two groups of 
facts, of which the first would not, whilst the second would, 
constitute convincing circumstantial evidence of a crime. The 
characteristic difference between good and bad circumstantial 
evidence cannot be better explained than by quoting the passage 
which contains this illustration : 

" In one of the works on evidence there is an admirable example 
" of a series of circumstances such as are intended to be excluded I >y 
" this rule, which we take the liberty of epitomising ; 

"1. The accused was a man of bad general character. 

" 2. He belonged to a nation characteristically regardless of 
" human life. 

" 3. He narrowly escaped conviction on a charge of murder sonic 
" years before. 

" 4. There is a strong ill-feeling between his nation and that of 
" the deceased. 

" 5. He was heard to make exclamations in his sleep indicating 
" a consciousness of having committed some terrible deed. 

" 6. The deceased was robbed, and the accused is proved to be 
" notoriously greedy about money. 

" It is scarcely necessary to say that, if a series of such circuiu- 
" stances were indefinitely accumulated, it would fail to produce 
" in a sane mind a conviction that the accused was guilty. There 
" is no visible ligamen between these facts and the facts sought to 
" be established that the accused committed the murder, as all the 
" facts are perfectly consistent with his innocence. Contrast such 
" circumstances with such as ordinarily present themselves in strong 

(a) Hodge's case, 2 Lewin, C. C., 227. 
((/) Law Journal, Oct. 11, 1879. 



Circumstantial Evidence. 67 

" cases of circumstantial evidence. Let us take, for instance, the Ch. VI. 
" following series of facts : 

'1. The deceased was found apparently murdered by a pistol 
" bullet, which penetrated the skull. 

" 2. On the ground near the body was found a small fragment 
" of a newspaper, which smelled strongly of burnt powder, and led 
" to the supposition that it had been used in separating the powder 
" from the ball ; and on the accused being arrested there was 
"found another piece of newspaper, which corresponded minutely 
" at the point where it was torn with that found near the bod}' of 
" the deceased. 

" 3. In a pond near the scene of the murder was found a pistol, 
" which had evidently been only recently thrown into the water, 
" and into which the bullet fitted. 

" 4. The pistol was proved to have belonged to a gentleman in 
" the neighbourhood ; but it also appeared that the prisoner was 
" a servant in his employment, and that the pistol was missed the 
" day before the murder from among several fowling pieces, 
" pistols, powder flasks, and other articles connected with the 
" paraphernalia of the sportsiran which were arranged in a small 
"room in the gentleman's house devoted to the purposes of sport. 
;; It was a part of the prisoner's duty to keep this room and its 
" contents in order. 

" 5. When asked whether he ever saw the pistol, he denied it. 

" On the prisoner were found two bank notes, which were proved 
" to have been given to the deceased in part payment for a horse 
" sold by him to a neighbour. 

" The first of these facts at once suggests suspicion against the 
" accused. As the second and subsequent circumstances are dis- 
" closed, the suspicion becomes intensified ; and, as the narrative 
" goes on, the strong apparent connection between the facts and 
" the crime rapidly, culminates, until, even before the last of them 
" is reached, the climax of moral certainty is attained, and the mind 
" is forced to accept the conclusion that the accused was the 
" perpetrator of the crime." 

44. The rule which requires production of the best obtainable Best evi- 



evidence does not require the strongest possible assurance ; in " 






other words, does not require the fullest proof of which the case strongest 

will admit, nor the repetition of evidence beyond that which is P ssible 

rv. . , -, ,. , ,, L f . ./ . . assurance. 

sumcient to establish the tact, ior instance, it is not necessary, in 

order to prove handwriting, to call the writer himself ; nor, if a 
whole regiment should be present at some overt act of mutiny or 
insubordination, as the striking a commanding officer in front of his 
regiment, would the law require the production of all the persons 
present ; for if one witness only were produced, and if, from his 
situation at the moment of the occurrence, he had as favourable 
an opportunity of observing what took place as any person present, 
his evidence would be complete, and not fnferior in kind to any that 
could be produced. 

45. On the same principle the law admits as sufficient the Dumber of 
testimony of one credible witness, subject to statutory exceptions in witnesses 
the case of treason and treason-felony ; and to the exception that requi 
in a trial for perjury one witness alone is not sufficient, without 
some material and independent corroborative evidence in proof of 
the statement as to which the perjury is charged, because, other- 
wise, there is only the oath of one witness against the oath of the 
person accused. The evidence of a single accomplice is in law 
sufficient for a conviction, but such evidence mast be received with 

(M.L.) E 2 



68 



Cli. VI. extreme caution, and unless corroborated (see para. 85) should not 
be accepted as proof of a person's guilt. 



III. Rule as 
to hearsay. 



Form of 
rule as to 
hearsay in 
narrower 

sense. 



Statement 
made in 
presence of 
accused not 
excluded. 



Dying 

declara- 
tions. 



46. The rule as to best evidence says that second-best evidence 
shall not be produced if better evidence can be found. The rule as 
to hearsay goes a step further, and says that certain classes of 
second-best evidence shall not be produced under any circumstances. 
The term " hearsay " is primarily applicable to what a witness has 
heard another person say with respect to facts in dispute. But it 
is extended to all statements, whether reduced to writing or nut, 
which are brought before the court, not by the authors of tin- 
statement, but by persons to whose knowledge the statements have 
been brought. The reasons for excluding such statements are, hrst, 
that they are not made on oath ; and, secondly, that the person to 
be affected by the statement has no opportunity of cross-examining 
its author. The rule has been often criticised on the ground that 
it sometimes excludes the only means of proof obtainable under 
the circumstances ; but its utility in excluding irresponsible proof 
is obvious (a). It is subject to various limitations or exceptions, 
tin- most important of which will be noticed below. 

47. The rule as to hearsay in its narrower sense may be stated as 
follows : "No statements with reference to a person charged with 

;ui oll'ence, relative to the charge, made in his absence, can be 
received in evidence against him." This rule is subject to several 
exceptions : first, the admissibility of so-called " dying declara- 
tions"; secondly, the admissibility of statements forming part of 
v hat is known by the name of the "res gestce" that is to say, of 
I lie fact, or set of facts, or transaction forming, the subject of judicial 
inquiry ; thirdly, the admissibility of statements made by a deceased 
person against his pecuniary or proprietary interest ; and, fourthly, 
the admissibility of statements made by a deceased person in the 
strict course of business. 

48. It will be observed that the rule does not include evidence as 
to statements made in the presence of the accused (6), but it must 
be recollected that evidence of any such statement, although ad- 
missible as showing the conduct of the accused when he heard the 
statement, is not evidence that the statement was true ; e.g., 
evidence that A.B. said to the accused "you stole C"s watch" is 
admissible to show the conduct of the accused on hearing that accusa- 
tion, but is not evidence to prove that the accused did in fact 
steal the watch as alleged. 

49. The first of the exceptions above referred to is that relating 
to dying declarations, which are admissible only in trials for murder 
or manslaughter. In such trials a declaration made by the person 
killed as to the cause of his death, or as to any of the circumstances 
of the transaction which resulted in his death, is admissible as 
evidence, if it is proved that the declarant, at the time of making 
the declaration, was in actual danger of death, and had given up 
all hope, of recovery. " Dying declarations," said Mr. Justice 

i'\lfs(r), "ought to be admitted with scrupulous, I had almost 



.,.! "Hearsay evidence, as a general rule, is in t admissible, and it is not art- 
mi .'Me because one knows to what extent people will be and are disposed to speak 
untruly, even without any motive whatever, and one knows what little imporiance 
<-an lie attached to any rumour or innythiiig stated as a mere hearsay." James, 
L. .T. in I'olini v. Gray, L. R. 12 Ch. Div. at p. 4L';x 

(6) As to confession of an accomplice made in the presence of the accused, see 
below, para. 73. 

(.(> It. v. Jenkins, L. R. 1 C. C. R. at p. 193. 



Hearsay Exceptions to Rule. 69 

said with superstitious care. They have not necessarily the sanction Ch. VI. 
of an oath; they are made in the absence of the prisoner; tin- 
person making them is not subject to cross-examination, and is iu 
no peril of prosecution for perjury. There is also great danger of 
omissions and of misrepresentations, both by the declarant and the 
witness. To make a dying declaration admissible, there must be 
an expectation of impending and almost immediate death from 
the causes then operating. The authorities show that there must 
be no hope whatever." 

50. The circumstances under which, in trials for murder, state- D yig 
ments by the person alleged to have been murdered as to the cause tkms!" 

of his death are and are not admissible as evidence against the illustration 
accused, may be illustrated by the following cases : ot rule> 

(".) At the time of making the statement the deceased had no 
hope of recovery, though his doctor had, and he lived ten 
days after making the statement. The statement was 
admitted as evidence (). 

(i.) The deceased, at the time of making the statement (which 
was written down), said something which was taken down 
thus : " I make the above statement with the fear of death 
before me, and with no hope of recovery." On the state- 
ment being read over, she corrected this to " with no 
hope at present of my recovery." She died thirteen 
hours afterwards. The statement was not admitted as 
evidence (&). 

51. Passing to the second of the exceptions above referred to, Statement 
the rule is, that where a statement is part of the res gestce or pa'rTo'n-es 
transaction constituting the offence, then, whether it is or is not gesttr. 
made in the presence of the accused, it is admissible as evidence 
against him. Words uttered during the continuance of the main 
action, whether by the active or by the passive party, though they 
cannot amount to acts for which the accused can be held respon- 
sible, yet may so qualify or explain the acts which they accompany, 

that they become essential for the due appreciation of them. Even 
where the accused is uo longer present, if the words are the im- 
mediate and natural effect and consequence of continuing action on 
his part, though uttered out of his hearing, they may well be 
considered as part of the transaction. 

52. There is no difficulty in understanding the general principle 
on which such statements are admitted, but there is sometimes great 
practical difficulty in determining how long the " transaction " s estae < 
ought to be considered as continuing, and what ought to be treated 

as " the immediate and natural effect of continuing action." Thus in 
a case (c), which has been the subject of much discussion, the facts 
appear to have been as follows : A man is knocked down by a 
passing cab, and afterwards dies from the injuries thereby occasioned. 
Just after the accident, the prisoner, the driver of the cab, being 
then out of sight and out of hearing, a person who had not witnessed 
what had occurred conies up, and inquires into the matter, and the 
deceased makes a statement to him. The statement was admitted 

I as evidence, though it did not come within the rule as to dying- 
declarations, but the propriety of its admission has been much 
questioned. 

(a) E. v. Mosley, 1 Moo. C. C. 97. This and the nest case are cited[as illustrations 
by Stephen, Dig. Ev., art. 26. 
' (b) li. v. Jenkins, L. R. 1 C. C. R. 187, 
(c) R, v, Foster, 6 C. and P, 335. 



70 



EVIDENCF. 



Ch. VI. 

Special rule 
in case of 
trials for 
rape and 
kindred 
offences. 



Statements 
as to bodily 
or mental 
feeling 
admissible. 



Declaration 
of deceased 
derson 
against 

interest. 

Statements 
made in 
course of 
business by 
person since 
deceased. 



Admissi- 
bility of 
deposition. 



Summary 
of evidence 
how far 
admissible. 



53. In trials for rape, and kindred offences against women and I 
evidence is allowed to be given as to the fact that, shortly I 

after the commission of the offence, the person against whom the 
offence was committed made a complaint about it, and as to the 
particular terms of the complaint so far as they relate to the 
charge. This is admissible for the purpose of showing that the con- 
duct of the person against whom the offence was committed was 
consistent with the story told by her in the witness box (a). | 

54. When it is intended to prove the bodily or mental feelings 
of a person at a particular time, evidence may be given of the usual 
expression of such feelings made by him at that time (b). Thus, 
in the Rugeley poisoning case, statements made by the deceased 
before his illness as to his state of health, and during his illness as 
to his symptoms, were admitted as evidence against the accused. 

55. Thirdly, a declaration, written or oral, made by a person 
since deceased against his pecuniary or proprietary interest is ad- 
missible (c). If it is admitted, the whole of the statement of which 
it forms part becomes admissible. 

56. Fourthly a statement, written or oral, or an entry, which it 
is the duty of a person to make in the ordinary course of his 
business or professional employment, is admissible as evidence after 
his death, provided it is made contemporaneously with the act to 
which it relates. But it is only admissible to prove those facts 
which it was the duty of the person making the statement or entry 
to include in it, and of which he had personal knowledge. Thus, 
where on a trial for murder it appeared that the deceased, a con- 
stable, had, in the course of his duty, made, shortly before his 
death, a verbal statement to his superior officer as to where he was 
going, and what he was going to do, it was held that this state- 
ment, which was to the effect that the deceased was going to watch 
the accused, was admissible (d). 

57. It may sometimes happen that a material witness, who has 
given evidence at the preliminary inquiry, cannot attend at the 
trial. In proceedings before a civil court for indictable offences, 
provision is made for such cases by a statute (e) which enacts that 
the deposition may be read as evidence, on proof that the witness is 
dead, or so ill as not to be able to travel, that the deposition was 
taken in the presence of the accused person, that the accused then 
had a full opportunity of cross-examining the deponent, and further, 
on prima facie evidence that the deposition is signed by the justice 
by or before whom it purports to be taken. This provision would 
be applicable where such depositions are required by a court- 
martial on a trial for an offence under s. 41 of the Army Act. 

58. There is no provision making the summary of evidence taken 
before a commanding officer, when an accused person is remanded for 
trial by court-martial, evidence under the same circumstances as 
depositions taken before magistrates. Accordingly, the summary 
cannot be admitted as evidence of the facts recorded by it except 
where the accused has pleaded guilty (/). But where a statement 



(a) R. v. Osbnrne, L.R. [1905] 1 K.B. 551. 

(b) Stephen, Dig. Ev., art. 11. 

(c) Stephen, Dig. Ev., art. 28. 

(rf) See Stephen, Dig. Ev., art. 27. Under 42 & 43 Viet., c. 11, where an entry is 
made in an ordinary banker's book in the usual and ordinary course of business, a 
copy of the entry is evidence of the entry and of the matters therein recorded. 

(e) 11 & 12 Viet., c. 42, s. 17. See also Stephen, Dig. Bv., arts. 140, Hi, and 30 & 31 
Viet., c. 35, s. 6. 

(/') See Rule 37, 



Hearsay Exceptions to Rule. VI 

recorded in the summary of evidence is put in issue before a Ch. VI. 
court-martial, as, for example, where a discrepancy is alleged 
between the statement made in the summary and the evidence 
given before a court-martial ; or where the alleged wilful falsehood 
of such a statement becomes the occasion of a trial by a court- 
martial, the summary, if purporting to give the verbatim statement 
of the witness, may be given in evidence as confirmatory of the 
statement having been made. 

59. The rule excluding hearsay evidence is, as has boon seen, Application 

applicable to written or documentary, as well as to oral evidence, of hearsay 
fjh^ ,. ., ruletodocu- 

I he statement of a person who is not called as a witness is none rnentary 
the less " hearsay " because it has been reduced to writing, and is evidence. 
ottered in that form to the court. But in its application to 
documents of a public or official character, the rule is subject to 
very important qualifications. In the case of many such documents, 
the statements which they contain are, either under the general 
law, or under express statutory provisions, admissible as evidence 
to the matters to which they relate. 

60. Thus, by the general law, a statement of any fact of a public Recitals of 

nature, if made in anv recital in a public Act of Parliament, or in P ub}ic facts 

, ,. J r . T i- or state- 

any Koyal proclamation, or speech in opening Parliament, or in me nts, pro- 

any address to the Crown of either House of Parliament, is damations, 
admissible as evidence of that fact. 

61. So also an entry in any record, official book, or register Entry in 

kept in the British dominions, or at sea, or in a foreign country, P ublic 

1 , /i i i / record made 

made in proper time by any person in the discharge or any duty j n pe rform- 

im posed on him by law, is admissible as evidence of the facts to ance of 
win. -hit relates. dut y- 

62. And, under the special provisions of the Army Act, attesta- Special pro- 
tion papers, letters, returns, and documents respecting service, army Arm^Acft. 
lists, gazettes, warrants, and orders made in pursuance of the Act, 
records in regimental books, descriptive returns, and certificates 

of conviction or acquittal, are made evidence of the facts stated 
by them (a). 

63. The general rule is that the opinion or belief of a witness is IV - 1 ? u . le as 
in>t evidence. A witness must depose to the particular facts ^ 
which he has seen, heard, or otherwise observed, and it is for the 

court to draw the necessary inference from these facts. Thus a 
witness may not on a trial for desertion characterise the absence of 
tin- accused as "desertion." This is a matter of inference, and is the 
point which it rests with the court to determine according to the 
e\ idence. The examination of the witness should be confined to 
the fact of the accused absenting himself, and to such other facts 
vant to the < -hargc- as may be within the knou-Iet.lye of the 
witness. 



(a) See Army Act, ss. 163-165. Note the distinction between the provision 
making the copy evidence of the original, as an exception from the rule as to 
best evidence (e.g., s. 163 (1) (c), as to copies of the King's Eegulations, Ifoyal 
Warrants, A'c.), and the provisions which make the document, as an exception 
from the rule as to hearsay, evidence of the facts to which it relates ; also the 
distinction between a document being evidence of certain facts and (as a letter 
or record) evidence of the statement <>t those facts by some person. 

The statements in the text, particularly in para. ,59, as to tlie admission of 
documents, do not exclude the admission in evidence of documents which are 
part of the res gestce. If, e.g., a person is charged with embezzlement, the 
books which it was his duty to keep are admissible in evidence as part of the 
transaction under investigation, and the entries made by him or under his authority 
in those books will be evidence against him, as part of his conduct in relation to 
that transaction, and as raising presumptions which he must explain. 



72 



EVIDENCE. 



Ch. VI. 

Exception 
in case of 
experts. 

Medical 
experts. 



Experts in 

military 

science. 



Experts in 
hand- 
writing. 



Rule 

excluding 
opinion 
rloes not 
exclude 
evidence as 
to belief. 



Opinion as 
to conduct, 
how far 
admissible. 



64. The chief exception to this rule relates to the evidence 
of experts. The opinion of an expert, that is to say, a person 
specially skilled in any science or art, is admissible as evidence on 
any point within the range of his .special knowledge. 

65. Thus, in a poisoning case, a doctor may be asked as an expert 
whether, in his opinion, a particular poison produces particular 
symptoms. And, where lunacy is set up as a defence, an expert 
may be asked whether, in his opinion, the symptoms exhibited 
by the alleged lunatic commonly show unsoundness of mind, and 
whether such unsoundness of mind usually renders persons in- 
capable of knowing the nature of their acts, or of knowing that 
what they do is either wrong or contrary to law (). 

66. An officer may be asked, as an expert, to give his opinion 
on a point within his special military knowledge, but to make his 
opinion admissible his knowledge must be of a kind not possessed 
by the court generally. Thus, in a trial before a court-martial it 
is not proper to ask a'witness for an opinion depending on military 
science generally, though it may be perfectly proper to put ques- 
tions involving opinion, to an engineer as to the progress of an 
attack, or to an artillery officer as to the probable effect of his 
arm, if directed as assumed ; since these matters, though having 
reference to military science, are not of such a nature as to be 
presumably known to each member of a court-martial. 

67. With respect to handwriting, it has been specially provided 
by statute (b) that comparison of a disputed handwriting with 
any writing, proved to the satisfaction of the court to be genuine, 
is permitted to be made by witnesses, and such writings, and the 
evidence of witnesses respecting the same, may be submitted to 
the court and jury as evidence of the genuineness, or otherwise, of 
the writing in dispute. It must, however, be borne in mind that 
writing made for the special purpose of comparison is not unlikely 
to be disguised. The comparison may be made either by a person 
acquainted with th handwriting, or by an expert in handwriting, 
or by the court itself. A witness may be required to read writing 
or to Avrite in the presence of the court. 

68. The rule which requires a witness to state what he kn\\ , 
and not what he thinks, does not require him to depose to facts 
with an expression of certainty that excludes all doubt in his 
mind. For example, it is the constant practice to receive in 
evidence a witness's belief of the identity of a person or thing, or 
of the fact of a certain handwriting being the handwriting of a 
particular person, though he will not swear positively to those facts. 
It has been decided that a witness who falsely swears that he 
"thinks" or "believes," may be convicted of perjury equally 
with the man who swears positively to that which he knows to be 
untrue. 

69. In eases affecting the conduct of the accused, either as to 
deportment or language, it is not only proper, but often necessary 
to require a witness to declare his opinion, because that opinion 
may be derived from the impression of a combination of circum- 
stances, occurring at the time referred to, difficult, if not impossible, 
fully to impart to the court. But it would be manifestly improper 
to draw the attention of a witness to facts, whether derived from 



(a) See 

(b) 28 - 



e Stephen, Dig. Ev., art. 49. and cases there cited as illustrations. 

& 29 Viet., c. 18, s. 8. Provided the witness is in fact skilled in the 

r i. ,1 :*. : . . . 14- X r, ,'.,,,. n 4- *-iv.i<-l -fl-iat l^o ic -nf\4~. si nvrtfpRRlfin n I OX "lPV*tl 



parisoii of handwriting, it is immaterial that he is not a p 
immaterial how be acquired his skill, K, v. Silverlock [1894] 2 



professional expert and 
Q.B. 766. 



Admissions and Confessions. 73 

his own testimony or from that of another witness, and to ask his Ch. VI. 
opinion as to their accordance with military discipline or usa.^ 1 , 
because the court, being in possession of facts, are the only proper 
judges of their tendency. If the witness is asked a question the 
tendency of which is to make him express his opinion as to the 
general conduct of the person accused, or to give his judgment 
on the whole matter of the charge, he may, and should, decline to 
answer it. 

70. A witness may not read his evidence or refer to notes of Refreshing 
evidence already given him, but he may while under examination 
refresh his memory by referring to any writing made by himself 

at the time of the transaction concerning which he is questioned, or 
so soon afterwards that the court consider it likely that the 
transaction was at that time fresh in his memory. The witness 
may also refer to any such writing made by any other person, and 
read by the witness within the time aforesaid if, when he read it, 
he knew it to be correct. Any writing so referred to must be 
produced and shown to the adverse party if he requires it, and that 
party may, if he pleases, cross-examine the witness upon it. 

71. But a witness who refreshes his memory by reference to a Notes re- 
writing must always swear positively as to the fact, or that he has ^tevi* 

a perfect recollection that the fact was truly stated in the memo- dence of 
raiidurn or entry at the time it was written. If on referring to themselves. 
a memorandum not made by himself he can neither recollect the 
fact nor recall his conviction as to the truth of the account or 
writing when the facts were fresh in his memory, so that he cannot 
speak as to the fact further than as finding it noted in a written 
entry, his testimony is objectionable, as hearsay. 



(v.) Admissions and Confessions. 

72. In criminal proceedings admissions by the accused of matters Rule as to 
relating to an alleged offence as distinguished from actual confes- admissions, 
sion of the oifence itself are, strictly speaking, not receivable as 
evidence (a). It is, however, the practice of courts-martial to 
receive admissions made in open court as to collateral or com- 
paratively unimportant facts, not involving criminal intent, which 
are not in dispute, but must be proved on the part either of the 
prosecution or of the defence. Thus, it is the practice to allow 
either party the option of admitting the authenticity of orders or 
letters, or the signature of a document, or the truth of a copy, put 
in by the other party, in cases where such writings are receivable 
when proved ; or that certain details in an enumeration of stores, 
or in an account, are correctly stated ; or that a promise or per- 
mission to a certain effect, or to a certain order, was actually given, 
or that a certain letter was sent or received on a given day ; and 
so in similar cases where admissions may expedite the proceedings 
and do not go to the merits of the matter before the court. 



() This does not extend to acts done or things said by the accused as part of 
the res ge*t<e, which, until explained by him, raise a presumption of guilt ; as, for 
instance, if he has charged himself in a book of account which it was his duty to 
keep with a sum of money, the book may be an admission that he received "tl.c 
money, and on proof that he made the entry, is admissible in evidence against 
him. A letter by a person charged with an offence apologising for the offence 
would ordinarily be a confession, but a letter admitting some of the facts 
alleged, but explaining them so as to show that there was no criminality in 
them, would ordinarily not amount to a confession. 



EVIDENCE. 



Confession 
made after 
removal of 
impression 
produced by 
threat, &c., 
deemed 
voluntary. 



73. The general rule is, that a confession is not admissible as 
evidence against any person except the person who makes it (a). 
But a confession made by one accomplice in the presence of another 
is admissible against the latter to this extent, that, if it implicates 
him, his silence under the charge may be used against him, whilst 
on the other hand his prompt repudiation of the charge might tell 
in his favour. 

74. Before a confession can be received in evidence, it must be 
proved affirmatively that the confession was free and voluntary ; 
and therefore the prosecutor must always prove the circumstances 
under which it was made. 

75. A confession is not deemed to be voluntary, if it appears to 
the court to have been caused by any inducement, threat, or 
promise proceeding from a magistrate or other person in authority 
or concerned in the charge (e.g., the prosecutor or the person having | 
the custody of the accused), and having reference to the charge 
against the accused person, whether addressed to him directly or 
brought to his knowledge indirectly, and if, in the opinion of the 
court, the inducement, threat, or promise gave the accused person 
reasonable grounds for supposing that by making a confession he 
would gain some advantage or avoid some evil in reference to the 
proceedings against him. Thus, on a trial of A for murdering 
B, a handbill issued by the Secretar of State, promising a reward 
and pardon to any accomplice who w T oukl confess, was brought to 
the knowledge of A, who, under the influence of a hope of pardon, 
made a confession. It was held that the confession was not 
voluntary (b). 

76. But a confession is not involuntary merely because it appears 
to have been caused by the exhortations of a person in authority 
to make it as a matter of religious duty, or by an inducement 
collateral to the proceedings, or by inducements held out by a person 
having nothing to do with the apprehension, prosecution, or exami- 
nation of the accused. Thus, A being charged with the murder of 
B, the chaplain of the gaol read the Commination Service to A, and 
exhorted him on religious grounds to confess his sins. A in con- 
sequence made a confession, and it was held that this confession 
w;is voluntary (c). So, again, a confession made by a prisoner to a 
gaoler in consequence of a promise by the gaoler that if the prisoner 
confessed lie should be allowed to see his wife, would be admissible 
in evidence. In short, to make a confession involuntary, the in- 
ducement must have reference to the escape of the accused from the 
criminal charge against him, and must be made by some person, 
having power to relieve him, wholly or partially, from the con- 
sequences of that charge. 

77. A confession is deemed to be voluntary if, in the opinion of 
the court, it is shown to have been made after the complete removal 
of the impression produced by any inducement, threat, or promise 
which would otherwise render it involuntary. Thus, A is accused 
of the murder of B, and C, a magistrate, tries to induce A to confess 
by promising to try to get him a pardon if he does so. The 
Secretary of State informs C that no pardon can be granted, 



(a) Stephen, Dig, Ev., art. 21. As to when the statement of one mutineer or 
conspirator is admissible against another, see above, para. 26, et seq. 

(b R. v. Jiosti-ell, Car. and Marsh, 681, cited as an illustration by Stephen, 
Dig. Ev., art. 22. B. v. Thompson [189.3] 2 Q.B., 12. I 

(c) It. v. Gilham, \ Moo, C. C., 186, cited by Stephen, Dig. Ev., art. 22, 



Who may give Evidence. 75 

and tliis is communicated to A. After this A makes a statement. Ch. VI. 
This is a voluntary confession (). 

78. Facts discovered in consequence of a confession improperly Facts 
obtained, and so much of the confession as distinctly relates to { 1 n ro ( J, ve n ' ed 
those facts may be proved. Thus, A, accused of burglary, makes involuntary 
a confession to a policeman under an inducement which prevents confession 
it from being voluntary. Part of it is that A had thrown a Ian- ' 

tern into a certain pond ; the fact that he said so, and that the 
lantern was found in the pond in consequence, may be proved (b). 

79. It is, of course, improper to endeavour to extort a confession Confession 
by fraud or under the promise of secrecy ; but if a confession promise^f^ 
is otherwise admissible as evidence, it does not become inadmis- secrecy, &c. 
sible' merely because it was made under a promise of secrecy, or 

in consequence of a deception practised on the accused person for 
the purpose of obtaining it, or when he was drunk, or because it 
was made in answer to questions whether put by a magistrate, 
officer, or private person, or because he was not warned that he 
was not bound to make the confession, and that evidence of it 
might be given against him. 

80. If a confession is given in evidence, the whole of it must be Whole of 
given, and not merely the parts disadvantageous to the accused must S be n 
person. given. 

81. Evidence amounting to a confession may be used as such Confession 
against the person who gives it, though it was given on oath and n a a n e OI j, 
though the proceeding in which it was given had reference to the previous" 1 
same subject-matter as the proceeding in which it is to be used, proceed- 
and though the witness might have refused to answer the questions mgs> 
put to him ; but if, after refusing to answer such questions, the 
witness is improperly compelled to answer, his answers are not a 
voluntary confession (c). Thus A was charged with maliciously 
wounding B. Before the magistrates, A had appeared as a witness 

for C, who was charged with the same offence. A's deposition 
was allowed to be used against him on his own trial (d). The same 
rule would appear to apply to statements made by a soldier charged 
before his commanding officer ; but the proceedings of a court of 
inquiry, or any confession or statement made at a court of inquiry, 
cannot be used as evidence against an officer or soldier before a 
court-martial, unless the court-martial is one for the trial of an 
officer or soldier for wilfully giving false evidence before the court 
of inquiry (e). 

(vi.) Who may (jive Evidence. 

82. As a general rule, every person is a competent witness. General 
Formerly persons were disqualified by crime or interest, or byruleas^te 
being parties to the proceedings, but these disqualifications have of'wt- 61 
now been removed by statute (/), and the circumstances which nesses. 
formerly created them do not affect the competency, though they 

may often affect the credibility, of a witness. 

83. Under the general law as it stood before the Act of 1898 Com - 
came into force a person charged with an offence was not com- p^rsoa 5 ' f 

! charged. 

(a) Stephen, Dig. Ev., art. 22, R. v. Clewes, 4 C. and P., 221. 

(b) Stephen, Dig. Ev., art. 22, R. v. Gould, 9 C. and P., 364. 

(c) Stephen, Dig. Ev., art. 23. 

(d) H. v. Chidley and Cummins, 8 Cox, Crim Ca 365 

(e) Kule 124 (L). 

(./') Lord Denman's Act, 6 <fe 7 Viet., c. 85; Lord Brougham's Act, 14 & 15 
Viet., c. 99 ; Criminal Evidence Act, 1898, 61 and 62 Viet., c. 36. The last-mentioned 
Act, bv s. 6, is not to apply to courts-martial till so applied by Rules of Procedure, 
It has so applied since the 16th January, 1899. gee Rule 73 (Bl, 



76 



EVIDENCE. 



. VI. petent to give evidence on his own behalf, but many exceptions 
had been made to this rule by legislation, and the rule itself 
was finally abolished by the Criminal Evidence Act, 1898. Under 
the new law a person charged is a competent witness, .but 

(i.) He can only give evidence for the defence ; and, 

(ii.) He can only give evidence if he himself applies to do so. 

84. Under the law as it stood before 1898 persons jointly 
charged and being tried together were not competent to give 
evidence either for or against each other. Under the new law a 
person charged jointly with another is a competent witness, but 
only for the defence and not for the prosecution. If, therefore, 
one person charged applies to give evidence his cross-examination 
must not be conducted with a view to establish the guilt of the 
other. 

If, therefore, it is thought desirable to use against one accused 
person the evidence of another who is being tried with him, the latter 
should be released, or a separate verdict of not guilty taken against 
him. An accused person so giving evidence is popularly said to turn 
King's evidence. If an accused person thinks that the evidence of 
one or more of the other persons proposed to be conjointly arraigned 
with him will be material to his defence, he should claim a 
separate trial (a). 

85. It follows from what has been stated that the evidence of 
an accomplice is admissible against his principal, and vice versa, 
subject, if they are tried together, to what has been stated in the 
preceding paragraph. The evidence of an accomplice should always 
be received with great jealousy and caution. A conviction on the 
unsupported testimony of an accomplice may, in some cases, be 
strictly legal, but it is the practice to require it to be confirmed 
by unimpeachable testimony in some material part, and more 
especially as to his identification of the person or persons against 
whom his evidence may be received. 

86. The wife of a person charged is now a competent witness, 
but, except in certain special cases : 

(i.) She can only give evidence for the defence ; and, 
(ii.) She can only give evidence if her husband applies that she 
should do so. 

The special cases in which a wife can be called as a witness 
either for the prosecution or for the defence, and without the 
consent of the person charged, are where the accused is charged 
with an offence under Sections 48 and 52-55 of the Offences against 
the Person Act, 1861 (24 & 25 Viet., c. 100), or under Section 12 
or 1C of the Married Women's Property Act, 1882 (45 & 46 Viet., 
c. 75), or under the Criminal Law Amendment Act, 1885 (48 & 49 
Viet., c. 69), or under the Prevention of Cruelty to Children Act 
1904 (4 Edw. 7, c. 15) (6), and cases in which the wife is by | 
common law a competent witness against her husband, i.e., where 
the proceeding is against the husband for bodily injury or violence 
inflicted on his wife. The rule of exclusion extends only to a 
lawful wife. There is no ground for supposing that the wife 
of a prosecutor is an incompetent witness. 



(a) See Rule 15. 

(b) Offences against 5 Geo. IV, e. 83, and 8 & 9 Viet., c. 83 (desertion of wife, 
&c.) are not included in this list, as the sections do not apply to persons subject to 
military law, See Army Act, e. 145 (I). 



Privilege of Witnesses. 77 

87. A Witness is incompetent if, in the opinion of 1 the court, he Ch. VI. 
is prevented by extreme youth (a), disease affecting his mind, * 
or any other cause of the same kind, from recollecting the matter tency^from 
on which he is to testify, from understanding the questions put idiotcy, &c. 
to him, from giving rational answers to those questions, or from 
knowing that he ought to speak the truth (b). 

88. A witness unable to speak or hear is not incompetent, but Deaf and 
may give his evidence by writing or by signs, or in any other dumb per- 
niHimer in which he can make it intelligible, but such writing competent" 
must be written and such signs made in open court. Evidence so 

-i\ i-ii is deemed to be oral evidence (b). 

89. The particular form of the religious belief of a witness, 

or his want of religious belief, does not affect his competency. If |>eiief 
he takes an oath he may take it with such ceremonies and in such 

i i i / \ T i i* 

manner as makes it binding on his conscience (c). It he objects petency. 
to take an oath on the ground that he has no religious belief, or 
that taking an oath is contrary to his religious belief, he may 
make a solemn affirmation (d). 

90. A member of a court-martial is a competent witness in favour Compe- 
o.f the accused, and might, as such, be sworn to give evidence ^ Member of 
any stage of the proceedings; but the Army Act and Rules of court to 
Procedure direct that a witness for the prosecution shall not sit on g'Y 6 

a court-martial for the trial of any person against whom he is evillence - 
a. witness (e). A member of 'the court must not. communicate 
privately to other members of the court any special knowledge 
which he has, or thinks that he has, of the guilt or innocence of the 
accused, or act on private grounds of belief. If he wishes to give 
evidence, he must be sworn as other witnesses and be subject to 
cross-examination. 

91. It will be seen that the effect of the successive enact- Distinction 
ments which have gradually removed the disqualifications attaching 

to various classes of witnesses has been to draw a distinction 
between the competency of a witness and his credibility. No person bility. 
is disqualified on moral or religious grounds, but his character may 
be such as to throw grave doubts on the value of his evidence. 
No relationship, except to a limited extent that of husband and 
wife, excludes from giving evidence. The parent may be exam ined 
on the trial of the child, the child on that of the parent, maste 
for or against servant, and servant for or against master. The 
relationship of the witness to the prosecutor or the accused in 
such cases may affect the credibility of the witness, but does not 
exclude his evidence. 

(vii.) Privilege of Witnesses. 

92. It by no means follows that, because a person is competent Person com * 
to give evidence, he is therefore compellable to do so. There are afwa'ysTom- 
many cases in which a witness before a civil court may decline to peitadieto 
answer a question or produce a document, and the like privileges eiu-e V1 ~ 
are expressly extended by statute to witnesses before courts- 
martial (/). 



CM By the Criminal Law Amendment Act, ISSu (18 & 49 Viet., c. 69, s. 4), aud 
I the Prevention of Cruelty to Children Act, 19U4 (4 Edw. 7, c. 15), s. lo, special pro- 
I vision is made for the reception of the unsworn evidence of a child in tin- I^LH^ of 
I certain offence? against girls and children. 
I (b) Stephen, Dig. Ev.. art. 107, 

(c) Kules 30, 82 iC) ; and see 1 & 2 Viet., c. 1CP. 

(d) 51 it i>2 Viet., c. 46 ; Army Act, a. 52 (4), Kule S3, 



i (e) Army Act, s. 50 (3), Kulea lit (B) (ii) and 106 
(/) See Army Act, s. 12*, and Rule ;3 (B,. 



78 



EVIDENCE. 



Ch. VI. 

Witness not 
to be com- 
pelled to 
criminate 
himself. 



93. No one, except the accused himself when giving evidence 
on his own application, and as to the offence wherewith he is 
charged, is bound to answer a question if the answer would, in the 
opinion of the court, have a tendency to expose the witness, or 
the wife or husband of the witness, to any criminal charge, penalty, 
or forfeiture, which the court regards as reasonably likely to be 
preferred or sued for, or to any military punishment. Accordingly, 
an accomplice cannot be examined without his consent, but if an 
accomplice who has come forward to give evidence on a promise 
of pardon, or favourable consideration, refuses to give full and fair 
information, he renders himself liable to be convicted on his own 
confession. However, even accomplices in such circumstances are 
not required to answer on their cross-examination as to other 
offences. 

93A. Where the accused offers himself as a witness he may be 
asked any question in cross-examination, notwithstanding that 
it would tend to criminate him as to the offence charged. But 
he may not be asked, and if he is asked must not be required to 
answer, any question tending to show that lie has committed, or 
been convicted of, or been charged with, any other offence, or is of 
bad character, unless 

(i.) The proof that he has cr muiitted or been convicted of the 
other offence is admissible evidence to show that IK' is 
guilty of the offence with which he is then charged ; or, 

(ii.) He lias personally or by his advocate asked questions of 
the witnesses for the prosecution, with a view to establish 
his own good character, or has given evidence of his good 
character, or the nature or conduct of the defence is such 
as to involve imputations on the character of the prosecutor 
or the witnesses for the prosecution ; or, 

(iii.) He has given evidence against any other person charged 
with the same offence (a). 

He may not be asked questions tending to criminate his wife. 
Evidence tending to show that the accused has been guilty of 
criminal acts other than those covered by the charge is not 
admissible, except on the issue whether the acts charged against 
the accused were designed or accidental, or except for the purpose 
of rebutting a defence otherwise open to him (ft). The circum- 
stances under which evidence of this kind is admissible arc well 
illustrated by the folio wing case (c). M. and his wife were charged 
with the wilful murder of an infant child. The evidence showed 
they had received the child from its mother on certain representa- 
tions as to their willingness to adopt it, and upon payment of a 
sum inadequate for its support for more than a very limited 
period, and that the child's body had been found buried in the 
garden of a house occupied by them. It was held that evidence 
that the prisoners had received several other infants from their 
mothers on like representations and on like terms, and that bodies 
of infants had been found buried in a similar manner in the gardens 
of several houses occupied by the prisoners, was relevant to the issue 
which had to be tried by the jury. In such a case the person charged 
would be liable to be cross-examined as to the circumstances 
under which the bodies of the other infants came to be so buried. 



(a) See Rule 80. 

(b) See para 22, supra. 

(c) Makin v. A'torney. General for New South Wales, L.R. [1894], A.C. 57. 



Competency of Witnesses, 79 

94. The privilege as to criminating answers does not eo\vr 
answers merely tending to establish a civil liability. No one is p r ; v ]i^7 e 
excused from answering a question or producing a doi-inncut only docs not 
because the answer or document may establish or tend to establish 
that lie owes a debt, or is otherwise liable to any civil suit, either 



at the instance of the crown or of any other person (<). ?. ivi !,. 

liability. 

95. The privilege of not answering for the above reasons is the When 
privilege of the witness, and therefore he may waive it, and if he privilege 
chooses to answer, his answer must be received in evidence, but the waived by 
privilege mentioned in the following paragraph is for the protection witness. 
of other parties, and cannot be waived except with their consent. 

96. Another class of privilege is based on considerations of Evidence as 

XT ,, , ., . . to affairs of 

public policy. No one can be compelled to give evidence relating state. 

to any affairs of State, or as to official communications between 
public officers upon public affairs, except with the permission of the 
officer at the head of the department concerned. 

97. On this principle, a confidential report, or letter, or official to'conlclen- 
information of a confidential character, although it may refer to tial reports 
matters which a court-martial may have decided to be relevant to ail( * mfo1 '- 
the inquiry before it, cannot be produced or disclosed except by 
consent of the superior authority ; and this consent is refused if 

the production or disclosure is considered detrimental to the public 
service. Proof of the refusal should be laid before the court by the 
examination of a witness, or by a written communication, read in 
open court, and attached to the proceedings. 

98. So also, the proceedings of a court of inquiry cannot be called Privilege as 
for by courts-martial, nor witnesses examined as to their contents ; C eerUngs of 
nor is any confession or statement made at a court of inquiry court of 
admissible against an officer or soldier before a court-martial. The 1I1( J ull 'y- 
only exception to this rule is in the case of a court-martial held for 

the trial of an officer or soldier for wilfully giving false evidence 
before the court of inquiry (/>). 

99. Again, in cases in which the Government is immediately Informa- 
concerned, no witness can be compelled to answer any question the jj^mlssion 
answer to which would tend to discover the names of persons by or O f offences. 
to whom information was given as to the commission of offences. It 

is, as a rule, for the court to decide whether the permission of any 
such question would or would not, under the circumstances of the 
particular case, be injurious to the administration of justice (c). 

100. A husband is not compellable to disclose any communication Commnni- 
rnade to him by his wife during the marriage ; and a wife is not cations 
compellable to disclose any communication made to her by her nmrriage. 
husband during the marriage (d). 

101. A legal adviser is not permitted, whether during or after Professional 
the termination of his employment as such, unless with his client's comn 111 - 
express consent, to disclose any communication, oral or documentary, 

made to him as such legal adviser, by or on behalf of his client, 
during, in the course of, and for the purpose of his employment, or 
to disclose any advice given by him to his client during, in the course 
of, and for the purpose of such employment. But this protection 
does not extend to : 

1. Any such communication if made in f urthei ance of any 
criminal purpose ; 

(re) 46 Geo. Ill, c. 37. 

(6) See also para. 81 above, and Hule 124 (L). 

(c) Stephen, Dig. Bv., art. 113. 

(d) 16 & 17 Viet,, c. 83, s. 3 ; 61 & 62 Viet., c. 36, 8. 1 (rf) ; and Kule SO (1). 



80 EVIDENCE. 

Cli. VI. 2. Any fact observed by a legal adviser in the course of his 
employment as such, showing that any crime or fraud has 
been committed since the commencement of his employment, 
whether his attention was directed to such fact by or on 
behalf of his client or not ; or 

3. Any fact with which the legal adviser became acquainted 
otherwise than in his character as such. 

The expression " legal adviser " includes barristers and solicitors, 
their clerks, and interpreters between them and their clients, and 
the person assisting the accused during trial before a court- 
martial (a). 

Doctors and 102. Medical men and clergymen are not privileged from the 
n.ot* y * n ^ 1 disclosure of communications made to them in professional confi- 
leged. dence, but it is not usual to press for the disclosures of communi- 

cations made to clergymen. 

Questions to 103. The questions, whether answered or not, should be entered 

on pro- ted on l ' ie proceedings. When the witness claims the privilege of not 

ceedings answering, it is for the court to decide whether the question is 

whether within any of the exceptions. Courts-martial may also in their 

or not. discretion interpose by informing a witness, at the time when a 

question is put to him, that he is not bound to answer. Any such 

interposition, and any claim of privilege by the witness, and the 

fact whether the witness is required to answer or not. should be 

noted on the proceedings. 

(viii.) How evidence is to be given. 

Mode of 104. The mode in. which evidence is to be given before courts- 

dence S dealt niart i a l i g fully dealt with in the Rules of Procedure, to Avliich 

with by the following paragraphs must be taken as supplemental. 
Kules. 

Points 105. It will be the duty of the court in every case to see that 

attention of ^ 10 ru l e s f evidence are strictly conformed to. The following 
court. points will require special attention in relation to any evidence 

that may be tendered : 

(a) That it is relevant to the issue. 

(6) That it is the best evidence procurable. 

(c) That it is not within the rule rejecting hearsay evidence. 

(d) That (except in the case of experts) it is not a mere expression 
of opinion. 

(e) That if it is a confession or admission, it is legally 

admissible. 
( / ) That if it is a document, it is legally admissible and properly 

put in evidence (6). 
(y) That no document or other thing ia used for the purposes 

of the trial which has not been properly put in (c), 
(A) That any witnesses called are legally competent to give 

evidence. 
(?') That any document with which a witness proposes to refresh 

his memory is legally admissible for the purpose. 
(/) That the examination of witnesses in fairly and properly 

conducted. 

(a) Stephen, Dig. Ev., art. 115.' I 

(6) A document is said to be "put in" when it is produced to the court, and, 

unless verification by a witness is unnecessary (para. 38), properly verified, 
(c) This must, however, be taken subject to the qualification that for purposes of 

identification, &c., any document or thing may be shown to a witness before it has 

been formally proved and put in. Sea below, para. IK). 



Examination of Witnesses. 81 

106. This last point requires a little more detailed notice. The Ch. VI. 
examination of a witness by the person who calls him is called his Exa ~^ a . 
examination, or direct examination, or examination- in-chief ; and on uonof 
this examination the question must be relevant to the issue, that witnesses. 
is to say, must relate to the matters in issue at the trial. The 

court must, of course, in all cases see that a witness is not com- 
pelled to answer any question in respect of which he is entitled to 
claim privilege ; and must also see that, as far as possible, 
a witness is so dealt with that his honest belief is obtained from 
him. 

107. Accordingly a witness must not be asked in examination- 
in- chief leading questions on any material point, that is to say, 
questions suggesting the answer which the person putting the 
question wishes or expects to receive, or suggesting disputed facts, 
as to which the witness is to testify. For instance, a witness must 
not be asked, " Did the accused then go into the barrack-room ? " 
but " What did the accused do next ? " If it were not for this 
rule a favourable and dishonest witness might be made to give 
any evidence that is desired. On the other hand, it would be mere 
waste of time to enforce the rule where the questions asked are 
simply introductory and form no part of the real substance of the 
inquiry, or where they relate to matters which, though material, 
are not disputed. But where a question relates to a contested 
point, which is either directly conclusive of the matter in issue, or 
directly and proximately connected with it, the rule should nearly 
always be strictly enforced, and no question should be allowed 
iu a form which directly or indirectly suggests to the witness the 
answer desired, or which, embodying a material fact, admits of a 
conclusive answer by a simple " Yes " or " No." 

108. Care must, however, be taken in enforcing this rule not Test of what 
to exclude questions which do not really suggest an answer, but 

merely direct the attention of the witness to the subject as to which 
he is questioned. It is often, indeed, extremely difficult in practice 
to determine whether or not a question is in a leading form, and in 
all such cases the real test should be whether or not the examina- 
tion is being conducted fairly and with the object of eliciting the 
honest belief of the witness. 

109. The following may be taken as examples of fair and unfair Examples of 
examination of a witness. Suppose a man to be charged with the u ^ a f 
murder of another by stabbing, the body having been found at questions, 
the upper end of a certain street, and a witness to be called to 

speak to the circumstances under which the blow was struck. 
There would be no objection to ask the witness 

If he remembered the 12th August, and 

If he was in North Street about noon on that day. 

These questions, though in a leading form, are merely intro- 
ductory, and if the defence of the accused was that he had struck the 
blow, but that he had done it in self defence, there would be no 
objection to going a little further and asking 

Whether he saw the deceased and the accused there ? 
But from this point all leading questions should be avoided, 
and the examination should be continued in some such form as 
this : 

In what part of the street were the accused and deceased 

when you first saw them ? 

How far were you from the accused and the deceased ? 
Tell us in your own words exactly what passed. 

(M.L.) F 



82 



EVIDENCE. 



Ch. VI. 



Rule as to 
directing 
attention to 
particular 
persons and 
things. 



Exceptions 
in case of 
hostile 
witness. 



Rules as to 
cross-ex- 
amination. 



To ask, instead of the first question- 
Were they at the upper end of the street when you first saw 

them ? 

would be highly improper, as it might be very important in con- 
sidering whether or not there had been a long quarrel or scuffle, 
to know whether they had moved far from the place where the 
witness first saw them to the place where the body was found. It 
would obviously be still more improper to ask, 

Did you see the accused go up stealthily behind the deceased 

and strike him a blow with a knife ? 
or any question of that character. 

If, on the other hand, the defence set up were an alibi, it would 
be improper to ask directly after the introductory questions 

Whether the witness saw the deceased and the accused there 1 
The questions in that event should rather be 
Whether lie saw anyone there ? 
Whether he could identify them ? 
Whether he can identify anyone in court as having been 

present ? 

though, finally, if an answer could not be got in any other way, the 
attention of the witness might be called to the accused, and he 
might be distinctly asked, 

" Whether he saw that person there 1 " 

But this should not be done until the witness had said that he 
saw some persons there, and that he would know them again. 

110. The rule in these cases is, that the attention of a witness 
who has alluded to any person or thing, may be called to a par- 
ticular person or thing for the purpose of identification, and that 
the witness may be asked directly whether that is the person or 
thing to which he alluded ; but in practice this should only be done 
after examination in the ordinary way has failed to elicit any distinct 
replies. When any article, such as a stick, belt, or document, is 
produced in court for the purpose of identification, the witness 
may be asked such questions as " Whether he recognises it," and 
" Whether he saw anything done with it, or to it ; " but such a 
question as " Whether he saw A strike B with the stick or belt," 
or " Whether he saw A make an alteration in the document," should 
not be admitted. If, however, the interests of justice plainly 
require it, the court may allow this general rule to be relaxed. 
Thus where a witness is evidently labouring under a want of 
recollection, the court may in their discretion, according to the 
circumstances, allow him to be assisted by the suggestion, for 
instance, of a name, or of the contents of a lost document. 

111. Of course, if a person calls a witness and the witness appears 
to be directly hostile to him, or interested on the other side, or 
unwilling to give evidence, the reason of the rule fails, and the court 
should allow the person calling the witness not only to ask him 
leading questions, but to cross-examine him, and to treat him in 
every respect as though he were a witness called by the other side, 
except that as he had been put forward as worthy of credit, by the 
person calling him, that person must not be permitted, either by 
cross-examination or by direct evidence, to impeach his credit by 
general evidence of bad character (a). 

112. When the examination-in-chief is finished the opposite party 
cross-examines the witness. In cross-examination leading questions 
and irrelevant questions may be put, and must be answered, as the 



(a) 28 & 29 Viet., c. 18, s 3. 



Cross-examination of Witnesses. 83 

cross-examining party is entitled to test the examination-in-chief by Ch. VI. 
every means in his power ; and irrelevant questions are often put in 
cross-examination for the sole purpose of putting a witness who is 
supposed to have learnt up the story, off his guard. Questions 
also may be put on cross-examination which tend either to test 
the accuracy or credibility of the witness or to shake his credit, 
impeaching his motives or injuring his character ; though such ques- 
tions cannot be put on the examination-in-chief or re-examination. 

113. Nevertheless, questions should not be allowed which assume Further 
that facts have been proved which have not been proved, or that "'^^j 
answers have been given contrary to the fact. Nor, though irrele- cross- 
vant questions may be asked, should a witness be pressed in cross- examina- 
exam ination as to any facts, which, if admitted, would not affect 

the matter at issue or the credit of the witness. And if the person 
cross-examining intends to adduce evidence contradicting the 
evidence given by the witness, he should be required to put to the 
witness in cross-examination the substance of the evidence which 
he proposes to adduce, in order to give him an opportunity of 
retracting or explaining. 

114. When a witness is under cross-examination he may be asked Further 

any questions which tend to test his accuracy, veracity, or credi- observ-a- 
i -i-i / L c -i. 11 11 j i_ j.i tions on 

bility, or (except in the case or a witness originally called by the cross- 
person cross-examining him) to shake his credit by injuring his examina- 
character. But a witness may of course decline to answer a question fa 
as to which he is entitled to claim privilege, and the right of 
asking questions tending merely to discredit, a right which has 
sometimes been seriously abused in civil courts, is qualified in the 
case of trials before courts-martial by Rule 92 of the Rules of 
Procedure. 

115. Evidence cannot be given to contradict the answer of any Exclusion 
witness to a question which only tends to shake his credit by f evidence 

. . . 1-1 'tO COIl- 

iiijuriLg his character, except : tradict 

(i.) Where the witness is asked whether he has ever been to S questions 
convicted of any felony or misdemeanour and denies or testing 
refuses to answer (a) ; veracity. 

(ii.) Where he is asked a question tending to show that he is not 
impartial ; 

(iii.) Where he has previously made inconsistent statements ; 

(iv.) Where he can be shown to be a notorious liar. 

In the first two cases proof may be given of the truth of the facts 
suggested. The other two cases are dealt with in the following 
paragraphs. 

116. A witness may be asked whether he has, on a previous Cross-ex- 
occasion, made a statement relative to the issue and inconsistent amination 
with his present testimony, the circumstances of the supposed state- "^5^ 
nieiit being referred to sufficiently to designate the particular statements. 
occasion, and if he does not admit that he made such a statement, 

proof may be given that he did in fact make it. The summary of 
evidence may be used to prove any statement which the witness 
made, and which it is proposed to contradict, and evidence may be 
called to prove that the evidence of a witness, though consistent 
with the summary, is not consistent with the evidence given by 
him at the investigation before the commanding officer. Such a 
question may be put, even though the statement may have been in 

(a) 28 & 29 Viet., c. 18. Such questions could not be put to an accused person giving 
evidence except in the cases mentioned in para. 93A. 



(M.L.) 



F 2 



84 



EVIDENCE. 



Ch. VI. 



Impeaching 
credit of 
witnesses. 



Rule as 
to re-ex- 
amination. 



Discretion 
of court as 
to enforcing 
rules. 



writing (notwithstanding the rules as to documentary evidence), 
and even without the writing being shown to him or proved in 
the first instance ; though it should be shown to him afterwards, 
and his attention called to those parts of the writing which are to> 
be vised to contradict him, as otherwise the contradictory proof 
cannot be given (a). 

117. The credit of any witness may be impeached by the adverse 
party by the evidence of persons who swear that they, from their 
knowledge of the witness, believe him to be unworthy of credit on 
his oath. Such persons may not, on their examination-in -chief ? 
give reasons for their belief, but they may be asked their reasons- 
in cross-examination, and their answers cannot be contradicted, 
When the credit of a witness is so impeached, the party who called 
the witness may give evidence in reply to show that the witness 
is worthy of credit. 

118. At the conclusion of the cross-examination the person 
who called the witness may, if he pleases, re-examine him ; but 
the re-examination must be directed exclusively to the explanation 
of matters referred to in cross-examination ; and if new matter is.. 
by permission of the court, introduced in re-examination, the other 
side may further cross-examine upon it. 

119. Speaking generally, the above rules should only be enforced: 
in their full strictness in the case of counsel or skilled advocates 
or other persons who may be supposed to be thoroughly acquainted' 
with the rules of evidence, and therefore may be presumed only to 
break the rules of evidence for the sake of obtaining an improper 
advantage. In other cases the court may allow considerable lati- 
tude, and should interfere only where the interests of justice 
plainly require it. 



(a) 28 & 29 Viet., c. 18, ss. 4, 5. 



85 



CHAPTER VII. 



OFFENCES PUNISHABLE BY ORDINARY LAW. 

Introductory. 

1. The first forty sections of the Array Act specify the various Liability of 
military offences of which a person subject to military law may C |, ( j l 1 ie s |; s to tt 
be guilty. The sections embrace not only offences against disci- a s military 
pline, but also offences against the persons and property of soldiers, law. 
Nearly all the offences of which a soldier can be guilty as a soldier 

and as against another soldier are included in these sections. 

A soldier, however, is not only a soldier but a citizen also, and 
as such is subject to the civil as well as to the military law. An 
act which constitutes an offence if committed by a civilian is none 
the less an offence if committed by a soldier, and a soldier not less 
than a civilian can be tried and punished for such an offence by 
the civil courts (a). 

2. In order to give military courts complete jurisdiction over jurisdiction 
soldiers, those courts are authorised to try and punish soldiers for of military 
civil offences, namely, offences which, if committed in England, are ^1 3 
punishable by the law of England. offences. 

They are not allowed to try the most serious offences (6) treason, 
murder, manslaughter, treason-felony, or rape if those offences can, 
with reasonable convenience, be tried by a civil court. They are, 
therefore, prohibited from trying any such offence if it is com- 
mitted in the United Kingdom, or if it is committed anywhere 
else in the King's dominions, except Gibraltar, within a hundred 
miles from a place where the offender can be tried by a civil court, 
unless indeed the offence is committed on active service. 

Subject to the above exceptions, a military court can try all 
civil offences of a soldier wherever committed. 

3. But though this wide power of trial is given, it is not as a Principles 
rule expedient to exercise the power universally. ? n ^. icl ? 

Where troops are stationed at places having no available civil shouid C be n 
courts under British judges within a reasonable distance, or are exercised, 
stationed in a foreign country, and the only law to which the 
troops are subject is that administered by the military courts, it 
is necessary to try all offences committed by soldiers by military 
courts. 

But in the United Kingdom, in most parts of India, and in 
most of the colonies, where there are regular civil courts close by, 
It is, as a general rule, inexpedient to try a civil offence by a mili- 
tary court, more especially if the offence is one which injured the 
property or person of a civilian, or if the civil authorities intimate 
a desire to bring the case before a civil court. 

This general rule is, however, subject to qualifications The line 
dividing the military from the civil offence may be narrow. The 
offence may have been committed within the barracks or military 
lines. There may be a doubt whether the person affected by the 

(a) Sections 41 (b), 162 (2), and ch. VIII. 

(61 Section 41. 



86 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Ch. VII. offence is or is not a civilian. The soldier may be one of a body of 
troops about to sail abroad. There may be reasons making the 
prompt infliction of punishment expedient. In any such case it 
may be desirable to try the offence by a military court. 

There may be also considerations arising out of the importance 
of maintaining military discipline. If either offences of a particular 
kind or offences generally are rife in a corps or at a station, it may be 
necessary, for the sake of discipline, to try every offence, whether 
civil or military, by court-martial, so that the punishment may be 
prompt and the sentence exemplary. 

The heinonsness of an offence is nlso an element of consideration. 
A trifling offence, such as would, if tried before a civil court, be 
properly punishable by a small tine, may well be punished by the 
military court immediately, especially if the case is one in wliich 
stoppages may be ordered to make good damage occasioned by the 
offence (a). On the other hand, a more serious offence, especially one 
which would ordinarily be tried by a jury, had better be relegated 
to the civil court. So should any case where intricate questions 
of law are likely to arise, as, for instance, questions of obtaining 
goods or money by false pretences from civilians. 

Scheme of 4. Though, then, the cases involving civil offences which will come 
the chapte-. before courts martial will not be numerous, it is necessary to 
describe the offences which may come before them. It is the 
object of this chapter to do so briefly. No scientific classification 
of offences has been attempted, but the more common offences 
have been treated in greater detail than those which experience 
shows rarely, if ever, to come within the cognisance of courts 
martial (b). 

Before proceeding to a description of the various offences it 
will be convenient to discuss, first, the punishments which may be 
awarded, and, secondly, the general principles as to criminal 
responsibility, principles, it must be remembered, which are 
applicable to military not less than to civil offences. 



Punish- 
ments. 



(i) Punishments. 

5. Section 41 of the Army Act specifies the punishments which 
may be awarded for the most serious offences, treason, murder, 
manslaughter treason-felony and rape. With regard lo every other 
civil offence, the erfect of tne section is to authorise courts-martial 
to award as a maximum punishment either, in the case of an I 
officer cashiering, or in the case of a soldier two years' imprisonment,! 
with or without hard labour, or the punishment which under the 
civil law may be awarded for the offence. This rule is, of course, 
subject to the general limitation on the powers of punishment of 
regimental and district courts-martial (c), and to the prohibition 
applicable to all courts-martial against awarding a period of 

() See Section 138 (3). 

(b) To those who wish for a more detailed knowledge of the criminal law of England 
the following author. ties are recommended :- Russell on Crimes and Misdemea- 
nours, Archbold's Pleadings and Evidence in Criminal Cases, Roscoe's Digest of the 
Law of Evidence in Criminal Cases, Stephen's Digest of Criminal Law, Stephen's 
General view of the Criminal Law, and the Report of the Criminal Code Bill 
Commission, 1879. A convenient summary of the law relating to each particular 
offence will be found iu the Encyclop<cd"ia of the Laws of England (edited by 
Mr. A. W. Renton;, under the proper heading. 

(c) Army Act, Sections 47 (?,), 48 (6). Under these provisions a regimental 
court-martial may not award a sentence of discharge with ignominy or in 
excess of detention for forty-two days. A district court-martial may award any 
punishment except death or penal servitude. 



Punishments. 87 

imprisonment exceeding two years (a). In the table at the end ch. VII. 
of this chapter will be found the punishments which a civil court 
can award in respect of each of the offences described in the 
chapter. A comparison of the various punishments will be a guide 
to the court as to the heinousness, of each offence in the eye of 
the law. It must be remembered that each punishment specified 
in the table, as well as the alternative punishment of two years' 
imprisonment, is a maximum, and in awarding punishment for a 
civil offence a court-martial should be guided by exactly the same 
principles as those which should guide them in punishing military 
offences (b). Where a sentence of penal servitude is passed the 
term awarded must be not less than three years. 

6. Other consequences besides the punishments awarded by the Other con- 
court sometimes result from a conviction, consequences which it 
will be well to bear in mind when passing sentence. Thus every tions. 
conviction for treason or felony (c) involves the consequence that 
the offender may be ordered to pay the whole or any part of the 
costs of the prosecution, and every conviction for felony involves 
the consequence that the offender may be ordered to pay any sum 
not exceeding 100 by way of compensation to any person who 
has suffered loss of property through his offence. 

So also if the offender is sentenced on a charge of treason or 
felony to 

Death, 

Penal servitude, 

Imprisonment with hard labour for any period, or 

Imprisonment without hard labour for more than one year, 
he will forfeit any public office, and any pension or superannuation- 
allowance payable out of any public funds, which he may then 
hold or be entitled to, unless he receives a free pardon within a 
limited time ; he will also become incapable of holding any public 
office or employment in the future, until he receives a free pardon 
or has suffered his punishment, and been discharged from custody ; 
and he will incur varioiis other civil disabilities (d). 

Again, if the offender is sentenced on a charge of treason or 
felony to death or penal servitude, he will be disabled from 
making contracts, from suing at law, and from charging or 
parting with his property until he is pardoned or has suffered 
his punishment and been discharged from custody ; and an 
administrator may be appointed to take charge of his property until 
such pardon or discharge, or until he dies, or is made bankrupt. 

(ii) Responsibility for Crime. 

7. The general rule is that a person is responsible for the Criminal 

, r i -r> j.i responsi- 

natural consequences or ins acts. Jout there are many cases in hiiity. 

which it would be obviously unfair to make a person criminally 
responsible for doing a particular act, though under ordinary 
circumstances such an act would undoubtedly be an offence. The 
following are the principal cases of this kind which it is necessary " 
to mention here. 

8. A child is considered to be incapable of committing an offence children, 
before the age of seven years ; and any act of a child between the 

(a) Army Act, a. 68 (2). Imprisonment is, of course, here used as distinct from 
penal servitude. 

(b) See eh. V, paras. 80-88. 

<c} As to which offences are felonies, see table at end of chapter. 
(d) See also Army Act, s. 44 (11). 



88 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Insane 
persons. 



Ch. VII. ages of seven and fourteen can only be held to be an offence if it 

is shown affirmatively that the child had sufficient capacity to know 

the nature and consequences of his act, and to appreciate that he 
was doing wrong. 

9. A person cannot be convicted on a criminal charge in respect 
of an act done by him while labouring under such unsoundness 
of mind as made him incapable of appreciating the nature and 
quality of the act he was doing, or that such an act was wrong. 
Thus, if a man kills another under the insane delusion that he is 
breaking a jar, he will not be criminally responsible. 

Every person is, however, presumed to be sane and to be 
responsible for his acts until the contrary appears, and it must, 
therefore, be clearly established that the accused is brought 
within the terms of the exception as above laid down before he 
can have the benefit of it (a). Unless a person is brought strictly 
within the terms of the exception it is no excuse whatever to show 
that his mind is affected by disease. For instance, the fact that a 
person is under the delusion that his nose is made of glass will not 
in any way excuse him if he commits an offence, unless he can 
prove that the delusion had a connection with the offence. 

It is immaterial whether the unsoundness of mind is due to 
natural imbecility or produced by disease, or whether the disease 
itself is due to the sufferer's own dissipation, a*, for instance, in 
the case of delirium treinens. 

10. If, how r ever, the unsoundness of mind is the result of mere 
temporary intoxication from liquor or drugs, it will be no excuse 
if the intoxication is voluntary, but it will be an excuse if the 
intoxication is produced by fraud, or otherwise against the will of 
the patient. Even voluntary intoxication will often be an important 
fact in considering the intention with which an act was done where 
the intention is an essential part of the crime ; for instance, 
if a person is accused of wounding another with intent to murder 
him, the fact that the accused was very drunk at the time ought 
to be taken into account in considering whether the intent is 
established ; though even in such a case the intent may be proved 
by evidence of premeditation, or other facts. 

11. An act may also be excused if committed by a person acting in 
company with others, provided that he is compelled to act as he 
does by threats of death or serious injury, continued during the 
whole time that he so acts. 

12. In extreme cases an act may sometimes be justified on the 
plea of necessity, if it is done by a person in order to avoid inevitable 
and irreparable evil to himself or those whom he is bound to pro- 
tect, though, of course, the act must not be disproportionate to 
the end to be attained, nor must more be done than is absolutely 
necessary to attain that end. Thus if the captain of a steamer, 
without any fault on his part, finds himself in such a position that 
he must either change his course or run down a boat with 20 people 
in it, he is justified in changing his course, although by so doing 
he runs a risk of swamping a boat with two people in it. 

13. Ignorance of lavo is no defence to a criminal charge. Thus, if 
A, a foreigner unacquainted with the law of England, kills B in 



Temporary 
intoxica- 
tion. 



Compul- 
sion. 



Necessity. 



Ignorance 
of law. 



a duel fought in England, A's act is 



murder, although he 



may 



(a) When on the trial by court-martial of a person charged with an offence it 
appears that such person committed the offence, but was insane at the time of 
its commission, the court must find specially the fact of his insanity. Army Act, 
B. 130 (2). 



Responsibility for Crime. 89 

have supposed it to be lawful. But such ignorance may properly Oh. VII. 
be taken into consideration in determining the amount of punish- 
ment to be awarded. 

14. Ignorance of factvfill very often be an excuse, i.e., a person's ignorance 
conduct will, as a rule, be judged as though the facts which he * fact - 
honestly and on reasonable grounds believed to exist at the time of 

such conduct had been the actual facts. But this excuse will not 
avail a person if his ignorance proceeds from wilfulness or negligence. 
In some few cases (which are noticed below when the otfences 
are described (a) ) even an honest and reasonable belief will not 
protect a man, if he is actually mistaken, and a man therefore does 
the act at his peril. 

15. Where a person has no excuse to prevent his being criminally Parties to 
responsible for the result of his actions, his responsibility will 

not be limited to the simple case where he is present, and actually 
commits an offence with his own hand. Thus, if a soldier negli- 
gently leaves a ball cartridge mixed with blank cartridges, he will 
be responsible if injury results. 

16. Again, where a person does an act by means of an innocent 
agent, as if a soldier knowing a note to be forged induces a comrade, 
who does not know it to be forged, to get it changed, or if a soldier, 
knowing that a pair of boots do not belong to him, induces a com- 
rade to steal them by representing that they were his property 
and not the property of the actual possessor, in both these cases 
the soldier, but not his comrade, is responsible. 

17. Similarly, if a person assists another in the commission of an Assisting in 
offence he is responsible as though he had committed it himself ; 

and even if such assistance is indirectly given, as, for instance, if two 
or three men go out together to commit a burglary, and one waits 
at the corner of the street to keep watch while the others commit 
the burglary, the watcher will be guilty of burglary equally with 
the others, though he never goes near the house. On the other 
hand, if the offence charged, involves some special intent, it must 
be shown that the assistant was cognisant of the intentions of the 
person whom he assisted ; thus, on a charge of wounding with 
intent to murder, it must be shown that an assistant not only 
assisted the principal oli'ender in what he did, but also knew what 
his intention was, before the former can be convicted on the full 
charge. 

18. If several persons go out with a common intent to execute Common 
some criminal purpose, each is responsible for every offence intent. 
committed by any one of them in furtherance of that purpose, but 

not for any offence committed by another member of the party 
-which is unconnected with the common purpose, unless he per- 
sonally instigates or assists in its commission. Thus, if a police 
officer goes with an assistant to arrest A in a house and all the 
occupants of this house resist the arrest, and in the struggle the 
assistant is killed the occupants are responsible. But if two 
persons go out to commit theft and one unknown to the other 
puts a pistol in his pocket and shoots a man the other is not 
responsible. 

19. A person is in all cases fully responsible for any offence instigating 
which is committed by another at his instigation ; even though an ol 

the offence may be committed in a different way from the one that 
lie suggested, as, for instance, if a person were to instigate another 



(a) See paras. 37, 39. 



90 



OFFENCES FUNISHABLE BY ORDINARY LAW. 



to murder a man by shooting him, and the murderer stabbed the 
man instead, the instigator would still be responsible. Further, 
he is responsible for any other offence which may, and was likely 
to, result from such instigation, as, for instance, the murder in the 
course of a robbery which he had instigated. But a person will not 
be responsible for an offence which he may have instigated another 
to commit, if he countermanded its execution, and notice of the 
countermand was received by the person instigated before the 
commission of the offence (a) : nor where he instigates one offence 
will he be responsible for the commission of another unconnected 
therewith. 

20. Mere knowledge that a person is about to commit an offence, 
and even conduct influenced by such knowledge, will not make a 
person responsible for that offence unless he does something actively 
to encourage its commission ; for instance, if a man knows that 
two others are going to fight a prize-fight, and acts as stake-holder, 
but takes no other part in the circumstances attending the fight, 
at which he is not present, and one of the prize-fighters is killed, 
the stake-holder will not be responsible for his death. 

21. When a person is responsible for an offence under paras. 17, 
18, and 19, he is equally responsible and liable to the same punish-, 
ment as the principal offender. Such a person 'is sometimes called 
an accessory before the fact. 

22. A person may in some cases incur criminal responsibility, 
even after an offence has been committed, if the offence is a 
felony (6), and he becomes what is called an accessory after the 
fact, i.e., if he assists the felon to evade justice (knowing that he 
has committed a felony) either by comforting, hiding, or otherwise 
actively assisting him, or by opposing his apprehension, or rescuing 
him from arrest, or by voluntarily permitting the felon to escape 
from his custody, where the accessory is himself the custodian. 
The mere allowing a felon to escape, without giving him active 
assistance, will not make a person, an accessory after the fact, 
except in the case above-mentioned, where the accessory is 
himself the custodian. 

23. An endeavour to commit or to procure the commission 
of an offence is in itself an offence and renders a person criminally 
responsible, even though the endeavour is unsuccessful (c). 

A mere intention to commit an offence unaccompanied by acts ' 
will not amount to an actual " attempt," nor will acts themselves, 
if they are merely preparatory to the commission of the offence. 
For instance, if a man goes to Birmingham to buy dies to make 
bad money, the mere going there is not an attempt to make bad 
money. Some overt act must be done which is more than an 
intention or preparation, and which aims at but falls short of the 
complete offence ; thus, if the man had not only gone to Birming- 
ham, but had actually bought the dies, he would have been guilty 
of an attempt to make bad money. 

It is not necessary that it should have been legally or physically 
possible for the offender to have committed die full offence. 

24. In some cases the intention with which an act is committed 
becomes essential ; where this is the case, the intention may either 



(a) Of course, though the execution of the crime was countermanded, the insti- 
gator would still be liable to be prosecuted for the misdemeanour of inciting 
to commit an offence, though not for the offence itself. 

(6) As to what offences are felonies, see Table at end of chapter. 

(c) As to attempts to murder, see para, 54; and as to what amounts to an attempt 
to shoot, see para. 34. 



Responsibility for Crime. 91 

be proved by independent evidence, as, for instance, by words proved ch. VII. 

to have been used by the offender or by a previous course of conduct 

(a), or may be presumed from the act itself, according to the maxim 
that a man intends the natural consequences of his own act. In 
other words, the mode of discovering a man's intention is to 
consider what were at the time of his act the natural consequences 
of that act. Thus, if A sets fire to B's mill, the intent of A to 
injure B is inferred as being a natural consequence of the act of 
A in setting tire to the mill. 

Intention iu this context means the immediate intention as 
distinguished from motive or ulterior intention. 

If a man bound by law to perform any duty does an act which 
necessarily causes, or most probably will cause, a failure in the 
performance of that duty, he will be held in law to have intended 
to fail, and therefore to have wilfully failed, to perform that duty. 

Thus, for example, if one soldier in charge of another who is in 
military custody leaves him in a public-house, and goes away to visit 
a friend elsewhere, and the soldier in custody escapes, the soldier in 
charge of him must be considered to have wilfully permitted him 
to escape, because the escape was the natural result of the act ; but 
if there was no evidence of any deliberate act of the soldier contrary 
to his duty, or if the escape was due to mere ordinary carelessness 
in the course of the performance of the soldier's duty, then he could 
not be held wilfully to have permitted the escape. 

25. Generally speaking, a person will not be criminally respon- Conse 
sible for an act affecting the person or property of another if done 
with that other's consent. This does not apply to cases of killing 

or maiming, except when the killing or maiming results from a 
surgical or some similar operation reasonably and properly per- 
formed for the sufferer (b). Thus, if one soldier with the consent 
even at the request of another cuts off that other's forefinger 
with a view to enable him to obtain his discharge, the consent or 
request does not relieve the former of responsibility. The 
consent must be free and must not be extorted by fear of injury or 
given under a misapprehension of fact. Such a consent, or the con- 
sent of a lunatic, of a child under twelve, or of a person in a state 
of intoxication, will not relieve the person who does the act of 
responsibility if the act apart from the consent would constitute 
an offence. 

26. A person is not criminally responsible for the result of a Accident 
pure accident which is not to be attributed in any way to any 
carelessness or negligence, or to an unlawful act on his part. 

Thus if a woodcutter is lawfully cutting down a tree and the 
head of his axe flies off, or if a man is lawfully riding down a 
road and his horse is whipped by another person, and caused to 
start off, or if a man is lawfully shooting at game or any other 
object, and in any of these cases there result to a bystander injuries 
which cannot be attributed to negligence on the part of the wood- 
cutter, rider, or shooter, as the case may be, he will not be 
responsible for the injuries caused. 

On the other hand, if a person points a gun at another in sport and 
pulls the trigger without having good grounds for believing, or 
having taken any proper precautions to ascertain, that the gun was 
unloaded, he will be responsible, as the accident might clearly have 

(a) See ch. VI, paras. 22-24, and 93A. 

(6) In cases of this kind the consent of the sufferer will be presumed if he is 
unable to give it. (e.g., if he is unconscious from the loss of blood). 



92 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



been prevented if he had not been culpably negligent ; but if a 
gunmaker showing a gun to a customer and having good reason 
to believe that it is unloaded, pulls the trigger and the gun is 
really loaded and shoots the customer, the gunmaker will not be 
responsible, even though he had not taken every possible means to 
ascertain whether the gun was or was not loaded. 

In each of the above illustrations it will be noticed that it is 
assumed that the act from which the injuries resulted was not in 
itself an unlawful act. For if the act was in itself unlawful, as if 
the woodcutter was doing an unlawful and malicious injury to the 
property of another, if the rider was a horse thief riding away 
with a stolen horse, if the shooter was a poacher, or if the man 
presenting a loaded gun was assaulting the person shot, the 
offender would in each case be criminally responsible for the 
injuries caused. This qualification is, hosvever, confined to the 
cases of acts which are in themselves unlawful, and not so because 
mere breaches of excise laws or similar regulations ; for instance, 
if the shooter, instead of being a poacher, were merely shooting 
without a gun licence, this would not of itself render him criminally 
responsible. 

27. If a person fails to take proper precautions when doing any- 
thing which is in its nature dangerous, he will be responsible 
though he had not the least intention of bringing about the 
consequences of his act (a). For instance, if a soldier lets off his 
rifle without taking the precautions proper under the particular 
circumstances and the bullet kills a man, the soldier will be 
responsible for his death. 

(iii.) Responsibility for the Use of Force. 

28. The general rule is that a person is criminally responsible 
for the use of force, but in many cases the use of force is justifiable: 
The amount of force which may be so used and the circumstances 
under which it may be used vary widely. 

29. In some cases any amount of force may be used, even if 
it entails bodily injury or even death ; in other cases any amount 
of force may be used provided that it is not used in a manner 
Intended or likely to cause death or grievous bodily harm. 

The general principle applicable to all cases is that no more force 
may be vised in any case than the person vising it believes, and has 
reasonable grounds for believing, to be necessary to effect the object 
in respect of whir-h he is entitled to vise force. So long as this 
principle is observed, a person is not responsible for the conse- 
quences which may result in any particular case from the use 
of any force which is not in excess of that allowed in the class 
of cases to which it belongs. Nor will a person be responsible if 
death accidentally results from the legitimate vise of force. 

30. The most important cases in which the vise of force is justifi- 
able are cases relating to administration of justice, prevention of 
crime, self-defence, the defence of property, the preservation of 
discipline, and the defence of the realm. 

A person acting as a ministerial officer in execution of the orders 
of some superior authority, and any person lawfully assisting him, 
may use force in obedience to the orders of the superior authority, 
if that authority when giving the order is acting as a court : that 



is to say, 



acting 



jurisdiction conferred by law. 



in a judicial capacity, in the exercise of some 



(o) S?e also para. 31. 



Responsibility for the Use of Force. 93 

The general rule in. such cases is that any duly authorised ch. VII. 
person is justified in using whatever force may be necessary in 
order to execute the lawful order of a court of competent authority, 
and in overcoming any violent resistance which may be made to 
the lawful use of such force, as, for instance, a police officer in 
executing a warrant of arrest. But such a person must not use 
such force as is either likely or intended to cause death or grievous 
bodily harm (unless he is violently resisted), except where lie 
is specially required to do so by the order itself, or where the 
order is a warrant of arrest for treason, felony (a), or piracy, in 
which cases he may at once use whatever amount of force may 
be necessary. Should a person be unable to justify himself under 
the rule above stated, it will in general be no excuse for him 
to show that he acted under the orders of some superior civil 
or military authority. His justification will, in such cases, depend 
upon the same considerations as though he had acted entirely on 
his own responsibility ; and the fact of his having received the 
orders will merely be of importance as a fact in the case which may 
throw light upon the state of his mind, as to reasonable belief, 
intent, or otherwise. 

If a person believes on reasonable grounds that another is about 
to commit any treason or felony (a) by open force he is justified in 
using any amount of force in preventing the commission. Similarly, 
any amount of force may be used by an officer of justice to execute 
a warrant of arrest for treason or felony, provided in either case 
the object for which force is used cannot be otherwise accomplished. 

If a person is lawfully called upon to assist a peace officer in 
the execution of his duty, he is bound to go to the officer's assist- 
ance, and will be justified in using force to the same extent as the 
officer himself. 

The law respecting the use of force for the suppression of riots 
and breaches of the peace is dealt with in another part of this 
work (b). 

A person may in all cases use any amount of force which is 
reasonably necessary for the defence of himself or his property, 
if he is not himself in the wrong (c). 

A person who is in peaceable possession of property of any 
description is entitled to defend it against trespassers, and to use 
force for the purpose of removing them from his land, or of 
retaining or re-taking his goods from them ; but he must not 
intentionally strike or hurt an ordinary trespasser unless he is 
resisted, in which case he may use such force as is reasonably 
necessary to overcome such resistance, though even in this case, 
unless himself assaulted and in danger, he must not intentionally 
inflict death or grievous bodily harm. If, however, the trespass is * 
a serious one, as where a trespasser endeavours forcibly to break 
and enter a dwelling-house with the intention of committing an 
indictable offence therein, any amount of force may be used to 
prevent him ; and if it is night, such force may be used even though 
the trespasser has really no such intention, if the person using the 
force reasonably believes that he has such an intention. 

The law also permits force to be used for correction or for the 
maintenance of discipline. Thus a parent or schoolmaster may 
forcibly correct any child or pupil under his care. In all such 

(a) As to what offences are felonies, see Table at the end of the chapter. 

(6) See oil. XIII. 

(c) For an illustration of this, see ch. VIII, para. 97. 



94 



OFTEN OKS PUNISHABLE BY ORDINARY LAW. 



cases the force used must be reasonable and not excessive (a), 
otherwise the person using the force will be fully responsible 
for the consequences. 

Finally, the law permits the use of force against the enemies 
of the realm in the actual heat and exercise of war. 



(iv.) Responsibility for Acts of Omission. 

31. A person is not ordinarily considered to cause injury to 
another by the mere omission of an act ; thus, if a man sees another 
drowning and is able to save him by holding out his hand, but 
omits to do so, even in the hope that the other may be drowned, 
still he is not criminally responsible. 

On the other hand, where the law considers that a person is 
bound to perform some particular act, he is held responsible if he 
omits to do so. For example, every person who has charge of 
another, e.g., a lunatic, an invalid, or a prisoner, is bound to provide 
him with necessaries if he is so helpless as to be unable to provide 
himself : and if death results from a neglect of such duty, the 
person in charge will be responsible unless he can show some 
good excuse. 

So, in the case of an animal known to be dangerous, the person 
in charge is bound to take such precautions as will safeguard the 
public from danger. 

32. Similarly, if a person undertakes to do any act the omission 
of which may endanger human life (as, for instance, warning 
persons from a range whilst firing is going on), and without law- 
ful excuse omits to discharge that duty, he is responsible for the 
consequences. Again, if a person undertakes (except in cases of 
necessity) to administer surgical or medical treatment, or to do 
any other act which may be dangerous to human life, he is 
responsible if death results from a want of reasonable care and 
skill on his part. For instance, if a soldier were to undertake to 
cut off the trigger finger of another soldier and mortification set 
in, he would be responsible for the consequences of his act. 



(v) Assaults and Sexual Offences. 

33. Assault in its simplest form consists of the use of force, 
either directly or indirectly, against a person without his consent. 

The use of force, however slight, is sufficient, but it must be used 
with the intention to cause, or with the knowledge that it is likely 
to cause injury, fear, or annoyance to the other person. 

The consent of the other person, in order to be an excuse, must 
be bond fide consent and not mere acquiescence (b). 

Not only the actual use of such force, but any act or gesture 
which causes the other person to apprehend that force will be used, 
is sufficient to constitute the offence of assault. Thus, shaking a 
fist in a man's face or pointing a pistol at him, may be assaults. 

A common assault, such as has been described above, is not a 
very serious offence, but if the assault is attended with aggravating 
circumstances it becomes far more serious, and if death results 
from the assault it becomes homicide. 



(a) See case of Governor Wall, ch. VIII, paras. 9^-9 
(6) See also para. 25. 



Assaults and Sexual 0/etices. 95 

34. The following are examples of aggravated assaults : Ch. VII. 

(1) Assaults with intent to commit a felony. 

(2) Assaults with intent to resist the lawful arrest or detention 

of a person. 

(3) Assaults on a peace officer in the execution of his duty. 

(4) Assaults occasioning actual bodily harm, i.e., injury calculated 

to interfere with the health or comfort of the sufferer. 

(5) Unlawful wounding, i.e., inflicting grievous bodily harm upon 

another unlawfully and maliciously. 

(6) Shooting or attempting to shoot (a) at another with the intent 

to do some grievous bodily harm to him, or to prevent 
the apprehension or detainer of a person. 

35. The most important cases of aggravated assaults are indecent indecent 
assaults ; that is, assaults on a male or a female, accompanied with assaults. 
circumstances of indecency. 

33. Rape is the act of a man having carnal knowledge without Rate, 
her consent of a female who is not his wife (6). 

Penetration is considered to constitute carnal knowledge ; it 
must therefore be proved that there was actual penetration by 
some part of the male organ or " res in re." The slightest 
penetration will be sufficient ; it is not necessary to prove that 
there was such penetration as would be sufficient to rupture the 
hymen. Whether there was an emission of semen or not is imma- 
terial. 

It is not an excuse that the woman was a common strumpet, or 
the concubine of the ravisher, if the offence was committed by 
force or against her will ; though proof of such facts is admissible^ 
and is of course important in considering whether or not she is 
likely to have consented. 

Consent, to be an excuse, must be actual consent, and not mere 
submission, and it must be voluntary, and not extorted by force 
or fear of immediate bodily harm (c). Thus, if an idiot submits 
to a man's having connection with her without actually permitting 
it, this is no consent, but if she actually permits the act, though 
from mere sexual instinct, and without really understanding its 
nature, this is a sufficient consent, and therefore the man is not 
guilty of rape(rf). It is no excuse that the woman consented at 
first or that she consented after the fact, if the offence was actually 
committed by force or against her will, at the time of the connection. 

A boy under the age of fourteen is conclusively presumed to be 
incapable of having carnal knowledge, and evidence cannot be 
received to show that he is capable in point of fact. He may, how- 
ever, be convicted of an indecent assault, and may, if he has 
aided another person to commit rape, be convicted of rape. 

37. Carnal knowledge (e) of a girl under the age of sixteen is an Carnal 
offence even though the girl consents (/'). knowledge, 

If the girl is over thirteen it is a sufficient defence to show that f a chlld ' 
the accused had reasonable cause to believe that the girl was over 



(a) A man attempts to shoot if he does any act (such as pulling out a loaded 
pistol, pointing it at a person, or fumbling with the trigger) from which it 
might be inferred that he intended to discharge it. See also para. 23. 

(6) Though a husband cannot himself commit rape ou his wife, he may be 
convicted of rape if he assists another person to commit rape on her. 

(c) See also para. 25. 

(d) Though not guilty of rape, he is guilty of an offence punishable with two 
years' imprisonment, if at the time he knew she was an idiot or imbecile. 

(e) For definition, see para. 36. 

(/) Of course, if tlie cuild doea not consent the offence becomes rape. 



96 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Ch. VII. sixteen. The prosecution for the offence must be commenced 
within six months from the commission of the offence. 

If the girl is under thirteen, it is no excuse, whether the offence- 
has "been committed or only attempted, that the offender believed 
that the girl was above the specified age, if she was really below it. 

If the girl herself or any other child of tender years tendered as- 
a witness does not understand the nature of an oath, their evidence 
may be received though not on oath, if the court is of opinion- 
that the girl or child is possessed of sufficient intelligence to justify 
the reception of the evidence and understands the duty of speaking 
the truth, but no person may be convicted in any such case unless 
such unsworn evidence is corroborated by some other material 
evidence in support of it implicating the accused ; and the witness 
will be liable to be punished for perjury for giving false evidence- 
exactly as if he or she had been sworn. 

It is also an offence for any person who is the owner or occupier 
of any premises of which he has the control or management, to 
induce or knowingly to suffer any girl under sixteen to resort to 
or be on the premises for the purpose of being carnally known 
by a man. It is a sufficient defence to show that the accused had 
reasonable grounds to believe that the girl was sixteen or over. 

38. It is an offence by threats or intimidation to procure any 
woman or girl to have any unlawful carnal connection within or 
without the King's dominions. 

Whoever takes away or detains any woman, of whatever age, 
against her will by force with the intention that she may be known 
by himself or any one else, is guilty of an offence (a). 

39. It is an offence to take, or cause to be taken, out of the 
possession and against the will of a person who has lawful charge 
of her 

(1.) An unmarried girl under the age of sixteen. 
(2.) An unmarried girl under the age of eighteen, with the intent 
that she may be carnally known by a man. 

To constitute the former of these offences it is immaterial 
whether the girl consents, and whether the taking is permanent 
or temporary, provided that she is taken under the charge of the 
offender and out of the control of the person who has lawful 
charge of her. Thus, if a man persuades a girl under sixteen to 
leave her father's house and sleep one or more nights with him, or 
if a man, at the request of a girl whom he has seduced, elopes with 
her, he has been guilty of the offence. 

In the case of the second offence, but not of the first, it is a, 
sufficient excuse to show that the accused had reasonable cause to 
believe that the girl was over the specified age. 

In either case it is necessary for the prosecution to prove that 
the offender had reason to believe that the 
of some one. 

It is 110 excuse that the guardian consented if the consent was 
obtained by fraud. 

If two or more persons agree to try to induce a woman to commit 
adultery or fornication, or to take any woman from the lawful 
custody of her parents in order to marry her to any person without 
the parents' consent, each of them is guilty of an offence (6). 



girl was in the charge 



(a) There are also special provisions as to similar offences where the woman 
possesses property. 

(b) As to consent, see para. 25. 



0/ences against Children and Servants. 97 

40. If a person intending to procure the miscarriage of a woman, Ch. VII. 
whether or not she is actually with child, unlawfully (a) causes her 

to take any poison or other noxious thing, or uses any instrument abortion" 8 
or other means with that intent, he is guilty of an offence. 

The supplying of a poison, noxious thing, or instruments, with the 
ntent that it or they should be used for the purpose of procuring 
a miscarriage, is also an offence. 

41. The offence of sodomy is when a male has carnal knowledge Sodomy. 
(6) of an animal or has carnal knowledge of a human being " per 



anurn." 



A. person over the age of fourteen allowing himself or herself to 
be known in this manner is guilty of the same offence. 

42. It is an offence for a male person, either in public or private, Acts of 
to commit, or to be a party to, the commission of any act of gross mdecenc y- 
indecency with another male person ; or to procure the commission 

of any such act. 

It is also an offence to do any grossly indecent act in a public 
place in the presence of two or more persons, or to publicly expose 
the person, or exhibit any disgusting object. 

It is further an offence to sell or expose for sale or view any 
obscene book, print, picture, or other indecent exhibition. 

43. The keeping of a disorderly house, that is, a common brothel, a Disorderly 

i i ii- i a- houses, 

common gaming house or a common betting house, is an onence. 

44. The doing of a dangerous act with a criminal intention is Dangerous 
itself an offence. The following are instances of such offences : act> 

(1.) The use of explosives with the intention of causing injury, 
whether or not an explosion actually takes place or any 
injury is caused. 

(2.) Unlawfully causing another to take poison, or any other 

noxious thing, so as to cause him grievous bodily harm, or 

with the intent that he may be injured or annoyed. 

In a few cases the doing of a dangerous thing, even without any 

criminal intention, is an offence, if injury or danger is actually 

caused. For instance, the causing of bodily harm to a person by 

furious driving or racing, or other wilful misconduct, or by wilful 

neglect, on the part of the person*in charge of a vehicle (c). The 

offence is, of course, aggravated if a criminal intention is also 

present. 

(vi) Offences against Children and Servants. 

45. If a person over sixteen years old, who has the care of a child m-treat- 
under sixteen years old, wilfully assaults, ill-treats, neglects, Children, 
abandons, or exposes the child, or causes it to be so treated, in a 
manner likely to cause the child unnecessary suffering or injury 

to health, he is guilty of an offence. 

The ill-treatment of the child must be wilful. 
. Injury to health includes mental derangement. 

The wife of the accused is in this case a competent, but not a 
icompellable, witness either for the prosecution or the defence. 

46. It is a more serious offence to abandon or expose a child Abandon- 
under two, so that its life is endangered, or its health is or is likely ^"^n 
to be permanently injured. 

47. A person who endeavours to conceal the birth of a child by a Conceai- 
secret disposition of its dead body is guilty of an offence. birth. f 

(a) Medical treatment rendered necessary by the woman's state of health, is of 
course, not unlawful. 
(6) See definition, para. 36. 
(c) See also para, 32. 



98 OFFENCES PUNISHABLE BY ORDINARY LAW. 

Oh. VII. It is immaterial whether the child died before, during, or after 
birth. 

48. If a person, legally liable as a master to provide necessary 
food, clothing or lodging for a servant, wilfully and without lawful 
excuse refuses or neglects to do so, so that the life of the servant is 
endangered, or his health is or is likely to be permanently injured, 
he is guilty of an offence. 

The offence must be wilful and without legal excuse. 
There is no limit as to the age of the servant. 

(vii) Homicide. 

Homicide. 49. If the death of a human being results from any action of any 
person, that person is said to have committed homicide. 

A person is criminally responsible for homicide unless he can 
show some legal excuse ; the consent of the person killed is no 
excuse (a). 

Death must result, either directly or indirectly, from the act. 
Whether it does so or not must depend on the circumstances of the 
case, but if the death occurs more than a year and a day after the 
act, the law presumes that death did not result from the act but 
from some other caiise, and the accused cannot be made responsible. 

Further, a person is not responsible for causing death unless death 
naturally results from his conduct ; as for instance, if a person 
wounds another dangerously, and that other dies, whether from 
neglect of proper treatment, or from improper treatment applied in 
rrood faith for the purpose of effecting a cure. Or if the wound is not 
dangerous in itself, but is rendered so by improper treatment, the 
person causing the injury is not responsible for causing death. 

The death caused must be that of a human being. A child is 
considered to become a human being as soon as it has wholly 
proceeded in a living state from the body of its mother, and has an 
independent circulation, whether it has breathed or not, and whether 
the umbilical cord has or has not been severed ; and a person is 
responsible for killing such a child, though the injuries of which it 
dies were inflicted by him before or during birth. 

A person is guilty of causing death even if he merely accelerated 
the other's death, and it is no excuse that the person killed must 
have died very shortly from some other cause. 

The fact that the blame is shared by another will not relieve a 
person contributing to the death from responsibility. Thus, if 
two drivers are illegally racing their carts along a high road, and 
one or both of the carts run over a drunken man and kill him, 
each driver is responsible for having caused the death. 

Murder. 50. If a person has unlawfully caused death by conduct which was 

intended to cause death or grievous bodily harm to some person, or 
even by conduct which any reasonable man must have known 
would be likely to cause death 'or grievous bodily harm to some 
person, whatever the intention of the offender may have been, he 
is guilty of murder. 

It is immaterial whether the person intended to be killed or 
injured is the person actually killed or some other person. 

If a person is proved to have killed another, the law presumes 
prima facie that he is guilty of murder. It will be on the accused 
to prove such facts as may reduce the offence to manslaughter, or 
excuse him from all criminal responsibility. 

It must not be supposed that the offence is not murder unless the 

(a) As to when the use of force resulting, or possibly resulting, in deathjs 
justifiable, see para. 30. 



Homicide. 99 

offender has deliberately intended to kill the person who is killed. Oh. VII. 

This is one kind of murder, and the most usual kind, but there 

are many others. 

A person is also guilty of murder 

(1.) If he causes death by any act done with the intention of 
committing any felony (a), and the act is known to be 
dangerous to life and likely in itself to cause death, for 
instance, if a burglar shoots at a dog and kills a man, or if a 
woman dies from the effects of being treated with a view to 
procure abortion ; and 

(2.) If he unlawfully resists and kills any person who is lawfully 
endeavouring to execute the duties of an officer of justice, 
or the orders of some civil or military authority, provided 
that the offender has sufficient notice of the capacity in which 
the person killed is acting. 

51. Sending a letter threatening to murder, and even the delivery Letters 

of such a letter, knowing its contents, is an offence. to^urde" 8 

52. It may be taken generally, that in all cases where a killing Man- 
cannot be justified, if it does not amount to murder, it is man- slaughter, 
slaughter, and a person charged with murder can be convicted of 
manslaughter. 

For instance, an act of negligence which results in death, if the 
act is not such that a reasonable man must have known that it 
would be likely to cause death or injury to some one, would 
render the person guilty of manslaughter, not of murder. 

Again, the offence is manslaughter if the act from which death 
results was committed under the influence of passion arising from 
extreme provocation. 

But it must be distinctly understood that no person is considered 
to give provocation to an offender merely by doing that which he 
has a legal right to do, or which the offender has incited him to 
do with the express purpose of providing himself with an excuse. 

The provocation must also be great, that is to say, practicaHy 
speaking, such as might reasonably be expected to put an ordinary 
person not of an exceptionally passionate disposition into such a 
passion that he would lose his power of self-control. 

Gestures or injuries to property, or breaches of contract, or slight 
blows unaccompanied by special insult, are not considered a 
sufficient provocation. 

Mere words, again, are not considered to afford sufficient 
provocation, except, perhaps, in some extreme cases. Where, how- 
ever, words are accompanied by a blow, though a slight one, the 
two may be taken into account together in estimating whether 
the provocation is sufficient. 

53. It must be clearly established in all cases where provocation Test of 

is put forward as an excuse, that at the time when tne crime was " ^v^ 
committed the offender was actually so completely tinder the cation, 
influence of passion arising from the provocation, that he was at 
that moment deprived of the power of self-control ; and with this 
view it will be necessary to consider carefully the manner in which 
the crime was committed, the length of the interval between the 
provocation and the killing, the conduct of the offender during that 
interval, and all other circumstances tending to show his state of 
mind. 

54. Attempts to murder (6) are only one degree less criminal Attempt to 
_ murder. 

(a) As to what offences are felonies, see Table at end of chapter. 
(l>) As to what amounts to an attempt, see para. 23. 

(M.L.) G 2 



100 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Conspiracy 
to murder. 



Ch. "VII. than murder itself, and any person doing or attempting to do 
any act with intent to commit murder is guilty of an offence. 

The act or attempt alleged, for instance, a wounding or stabbing, 
an attempt to fire a pistol (a) which does not go off, or any similar 
act or attempt, must be laid in this charge and proved as laid. 

It must also be proved that the accused intended thereby 
to commit murder, which intent may be gathered from the nature 
of the act itself, or may be proved by other evidence, as for 
instance, by threats and words proved to have been used by the 
accused (6). 

55. It is an offence to conspire with or endeavour to persuade 
or propose to any other person to murder a third party, whether a 
subject of the King or not, and this even though no overt act is 
dc ne or attempted. 

(viii) Theft and the, Cognate, Offences. 

Theft. 56. Theft may be described as the fraudulent taking of any 

movable property out of the possession of any person without 
that person's consent, with the intention of permanently depriving 
that person of the property. 

In the consideration of a charge of theft the following points 
must be borne in mind : 

The property must be taken fraudulently, that is, without 
any colour of right. If it is taken under the supposition, honestly 
entertained, that the taker has an immediate right to possession (c) 
the taking is not fraudulent, and there is no theft. 

The fraudulent intention must exist at the time of the taking. 
If the taking is innocent, a subsequent fraudulent misappropriation 
-of the property will not constitute theft (d). 

The property must be taken with the intention of perma- 
nently depriving the possessor of it. Whether such an intention 
existed is a question to be decided according to the inference to be 
drawn from the facts of the case. 

The taking must be without the consent of the possessor. Consent 
-will not be an excuse if extorted by force or fraud (e). 

But if not only the possession of, but also the property in, any 
goods (/) is obtained by fraud, the offence committed is not 
theft, but obtaining goods under false pretences, an offence which 
is dealt with below (g). 

The property must be movable property ; anything attached to 
the ground, such as trees, or any part of a tree, corn, grass, and 
the like, is not the subject of theft (/t). 

The smallest amount of moving, so long as there is a severance 
of the property from the possession of the person from whom 

(a) As to what amounts to an attempt to fire a pistol, see note (a) p. 95. 
(6) Attempts to commit suicide do not amount to attempts to commit murder ; 
such attempts should be dealt with tinder s. 38 (2) of the Army Act. 

(c) Thus a person who has pawned his watch can steal the watch from the 
pawnbroker, because he has no right to possession until he has redeemed it. 

(d) But see as to theft by a bailee, p. 101, note (a). 

(e) See also para. 25. 

(/) The property in the goods is obtained if the person obtaining them becomes 
the owner. Thus if a person sells goods, the property in the goods passes to the 
purchaser ; if he pawns them, the pawnbroker obtains the possession of, but not the 
property in, the goods. 

(g) Para. 63. 

(h) At common law many other things were not the subject of theft ; see the 
Jist of these things, and the statutory modification of that list in note (a) p. 103. 
*J?he only difference, so far as the offence of theft is concerned, between theft of 
a thing a subject of theft at common law, and of a thing a subject of theft by 
statute, lies in the amount of punishment that may be awarded (as to which see 
Table at the end of the chapter;. 



Theft and the Cognate Ojfences. 101 

it is taken, is sufficient to constitute a taking. Thus, taking goods Ch. VII. 

out of a box and laying them on the floor is sufficient to constitute 

theft if the other elements of theft exist. The line between what 
is and what is not a sufficient taking is extremely fine, and if 
there is any doubt as to whether the taking is sufficient it will be 
well to convict of an attempt to steal only. 

Finally, there must be deprivation of possession. It does not 
matter whether the possession is rightful or wrongful. A thing 
can be stolen from a thief who has himself stolen it, not less than 
from the rightful owner of the thing. A person cannot steal a 
thing which is in his own possession (a), or a thing which is not 
in the possession of any one (b). 

57. In considering the question of possession, two things must be Possession 
borne in mind : (1) That a thing which is lost, in the eye of the "^perty 
law, remains, unless abandoned, in the possession of the loser, and an d posses- 
(2) that possession by a servant of anything on behalf of his master sion b .v 

is considered to be the possession of the master or the possession s< 
of the servant according to the circumstances under which the 
servant originally received it. If, for instance, a servant is given 
the custody of anything by his master, or by a fellow-servant who 
has been given the custody of it by his master, the servant will 
have no real possession of the thing, and the possession will remain 
in the master. Therefore any fraudulent misappropriation of the 
thing by the servant will be theft. If, however, a servant receives 
anything from a third person on his master's account, then the 
servant will have possession of the thing and the master will 
have no possession, until the servant does some act by which 
the possession is transferred from the servant to the master. 

58. From the first of the above considerations it follows that a Stealing, 
person finding property which has been lost, can steal it, though 
apparently in the possession of no one, if the other necessary elements 

of theft (e.g., a fraudulent intention to appropriate) are present at 
the time of the finding. This rule is subject to the exception that 
if the finder, at the time, does not know, and has no reasonable 
grounds to believe that he can find out, who the owner is, the taking, 
possession is considered to be innocent, and no subsequent misap- 
propriation of it by the finder can amount to theft. Thus, if a 
soldier finds a sovereign lying about in barracks and immediately 
appropriates it, this would be theft, but if he found the sovereign 
lying in a street outside barracks this would not be theft, even 
though lie afterwards discovered that it belonged to a comrade 
and did not mention that he had found it and kept it for his own 
use. 

59. From the second consideration it follows that a servant can Embezzie- 
steal a thing, the custody of which he has received from his master, meDt - 
but not a thing which he has received from a third person on 
behalf of his master. But though not guilty of theft in the latter 

case, the servant is guilty of an offence closely resembling theft and 
which is called embezzlement. This offence consists in the fraudu- 
lent appropriation by a servant of property belonging to his master 
of which he has possession under circumstances which constitute 
such possession the possession of the servant and not of the 
master. 

(a) Theft by a bailee is a statutory exception to this rule. Where a person (called 
the bailor) has entrusted an article to the care of another person (called the bailee), 
the bailee, by fraudulently misappropriating the article, becomes guilty ol the 
effence of theft. 

(b) See also ss. 17 and 18 (4) of the Army Act, and notes. 



102 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Ch. VII. 



Conviction 
for theft on 
charge of 
embezzle- 
ment and 
vice versa. 



Embezzle- 
ment by 
persons in 
oulilic 
service. 

Obtaining 
goods by 
false 
pretences. 



By servant is meant a person who is bound not merely to carry 
out the instructions of his employer as to what to do, but also as to 
how and when to do it. The employment may be either general, or 
for a specified time, or for the performance of a single act. 

On a charge of embezzlement the fraudulent misappropriation of 
the property may be inferred either from the fact that the accused 
person has not handed it over or accounted for it in the ordinary 
course, or from the fact of his having falsely accounted for it, or 
from the fact that on an examination of his accounts there is a 
general deficiency which he is unable to explain, or from the fact 
of his having absconded, or in any similar way. It must, however, 
be remembered that none of these facts in itself constitutes the 
offence of embezzlement ; each is evidence only of fraudulent misap- 
propriation. 

60. If, on a charge of embezzlement, it turns out that the offence 
is in fact theft and not embezzlement, or if on a charge of .theft it 
appears that the offence is really embezzlement, the accused is not 
entitled to be acquitted, but may be convicted of the alternative 
offence on the charge which has been preferred. As a natural 
sequence to this provision, if a person is once acquitted of embezzle- 
ment or theft, he cannot be afterwards charged with the alternative 
offence of theft or embezzlement on the same facts (). 

61. A somewhat similar offence is where a person who is employed 
in the public service fraudulently converts any chattel, money, or 
security of which he has the control by virtue of such appointment, 
to any purpose other than the public service. 

62. As has been said (para. 56), when a person obtains not only 
the possession of but also the property in goods by fraud, the 
offence is not theft but obtaining goods under false pretences. The 
elements constituting the offence of obtaining goods under false 
pretences are very similar to those constituting theft. 

There must have been an intention of depriving the owner per- 
manently of the thing obtained, and the intention must have been 
fraudulent, though there need not have been an intention to defraud 
any particular person. 

The goods must have been obtained either directly or indirectly 
by the pretence, that is to say, they would not have been obtained 
but for the pretence. If the person from whom the goods are 
obtained is not deceived by the pretence, but k'nows it to be false, 
the goods are not obtained by false pretences, but in such a ca^e 
the person making the false statement may be convicted of attempt- 
ing to obtain the goods by false pretences. 

The false pretence must be a false representation, express or 
implied, as to the past or present existence of some fact ; a mere 
promise -is> tp future conduct, or representations as to future expec- 
tations are not sufficient. For instance, the giving a cheque in 
exchange for goods is a representation that the drawer has authority I 
to draw upon the bank for the amount of the cheque, and if he | 
knows that this is not so, it is a legal false pretence. But repre- 
sentations of future expectations, unless they are representations of 
existing facts, do not constitute a false pretence, and obtaining 
goods on credit by means of such representations is not obtaining 
goods on false pretences. 

The false pretence may be made in any way, either by words, by 
writing, or by conduct ; for instance, if a person, not being an officer 
in the army, represents himself to be so by wearing an officer's 



(a) As to embezzlement under the Army Act, see ss. 17, 18 (4), 56 (1) (2). 



Theft and the Cognate Offences. 103 

Uniform, and thus obtains goods from a tradesman : this is false Ch. VII. 
pretence by conduct. 

It is no excuse to say that a person of common prudence could 
easily have found out that the pretence was untrue, nor to say that 
the existence of the alleged fact was impossible, or that it wa.s 
intended to make compensation for the goods in the future. 

An article cannot be the subject of the offence of obtaining goods 
by false pretences unless it could have been the subject of theft at 
common law (a). 

63. If a person is charged with obtaining anything by false c , on , vi L tion 

, , Ll J p, of theft on 

pretences, and the offence turns out to be really theft, the prisoner c i iarge O f 

may be convicted on that charge of the theft ; and therefore if a obtaining 
person has once been acquitted of obtaining anything by false pre- p^ences. 
tences, he cannot afterwards be charged with stealing on the same 
facts. A person cannot, however, be convicted of obtaining goods 
by false pretences on a charge of theft, and he may therefore be 
charged with obtaining the thing by false pretences .on the same 
facts on which he may have been acquitted when charged with 
theft. 

64. Theft of a thing on the body or in the immediate possession Robbery, 
of the person from whom it is taken, if accompanied by violence or 
threats of injury, is called robbery. 

The threats must be threats of injury to the person, property, 
or reputation of the person robbed, and must be such as would 
reasonably induce a fear of injury. 

The violence or threats must be intentionally used for the 
purpose of overcoming or preventing resistance, or of extorting the 
thing stolen. Violence used merely for the purpose of obtahriig 
possession of the thing, such as snatching a watch out of a pocket, 
is not sufficient to constitute robbery. 

An assault with intent to rob is a similar offence ; and a person 
charged with robbery may be convicted of an assault with intent 
to rob. 

65. Where the thing is not on the body or in the immediate Extortion, 
possession of a person and violence or threats are used for the 
purpose of extorting it from him the offence is called extortion. 

A somewhat similar offence is when threats or violence are used 
to induce a person to execute, make, accept, endorse, alter, or destroy 
any valuable security, with the intention of injuring or defrauding 
that or any other person. 

66. Offences closely allied to thefts and robbery are those of Breaking 
entering or breaking and entering a house with the intention of entering, 
committing a felony (b). The latter offence if the house is a 
dwelling-house (<;) and the entering and breaking is at night (cf) is 
termed burglary. 

There must in every case be an intention to commit a felony in 
the house entered. 



(a) The following classes of things are not the subject of theft at common law : 

(1) Things abandoned by the owner. 

(2) Land, and things permanently attached to land. 

(3) Title deeds, bonds, &c. 

(4) Wild animals (including game). 

(5) Base animals, such as dogs, ferrtts, &c. 

Of these, plants and shrubs growing in gardens, &c., title deeds, all animals which 
are usually kept in confinement, including dogs, have been made the subject of 
theft by statute. 

(ft) As to what offences are felonies, see Table at the end of the chapter. 

(c) A dwelling-house is any permanent building or separate part thereof in which 
the owner or tenant, or any one with their consent, habitually sleeps at night. 

(d) Night means the interval between nine at night and six in the morning. 



104 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Ch. VII. 



Receiving 
stolen 
goods, &c. 



Cheating, 
&c. 



A person is considered to " enter " a house as soon as he intro- 
duces into the house any part of his body or any instrument held 
in his hand for the purpose cf intimidating any one in the house 
or of removing any goods ; the introduction into the house of a 
housebreaking tool is not sufficient. 

A person is considered to " break " a house 

(a) if he breaks any part, internal or external, of the building 
itself, or 

(6) if he opens by any means whatever (a) any closed door, 
window, or other thing intended to cover openings to the 
house, or leading from one part of it to another, or 

(c) if he gets down the chimney, or 

(d) if he gains entrance to the house by threats, artifice, or 

collusion. 

If a person having committed a felony (6) in a house breaks out 
"of it he is guilty of the offence of breaking out, or, if the house 
is a dwelling-house (c) and the breaking out is at night (d), of 
burglary. 

It is also an offence 

(a) to be found by night (d) in possession of housebreaking tools 
unless a lawful excuse for such possession can be given : . 
(V) to be found by night (d) armed with an offensive weapon with& 

the intention of breaking into a building and committing 

felony (&) therein ; 

(c) to be disguised at night (d) with the intention of committing 

felony (6) ; 

(d) to be found by night in any building with the intention of 

committing felony (b) therein. 

67. The receiving of stolen goods or goods obtained by means of a 
criminal offence is itself an offence ; as is also the taking of a reward [ 
for helping to the recovery of stolen property without bringing! 
the offender to trial. 

The guilty knowledge of the receiver must be established. The 
recent possession of the goods, coupled with the inability to give a 
reasonable account of such possession, justifies the presumption that 
the receiver got the goods dishonestly. The fact that he bought 
them much below their value, or that he falsely denied his 
possession of them, would be evidence of guilt. 

A person is considered to receive the goods as soon as he obtains- 
control over them. 

68. The following are offences somewhat similar to theft and 
embezzlement and obtaining money under false pretences : - 

(1.) Obtaining money by false pretences by cheating at cards ; 

(2,) Fraudulently obtaining the execution of a valuable security, 
or affixing a name on any paper with a view to its being 
subsequently dealt with as a valuable security ; 

(3.) Cheating, by a deceitful practice affecting the public ; 

(4.) Conspiring to defraud ; that is an agreement by two or more 
persons to do an act with the intention of deceiving the 



(n) This includes opening a shut window or door, but not pushing an open window 
or door further open. 

(4) As to what offences are felonies, see Table at the end of the chapter. 

(c) A dwelling-house is any permanent building or separate part thereof in which 
the owner or tenant, or any one with their consent habitually sleeps at night. 

(rf) Night means the interval between nine at night and six in the morning. 



Forgery; Perjury ; Coinage Offences; Personation. 105 

public or any person or class of persons ; or to extort money ch. VII. 

or goods from any person ; 

(5.) Fraudulently obliterating any mark denoting the property of 
His Majesty in any stores. 

(ix.) Forgery; Perjury; Coinage Offences ; Personation. 

69. Forgery consists in knowingly making a false document Forgery, 
which is on the face of it valid, with the intention to defraud or 
injure (a). 

A false signature to a genuine document, or a genuine signature 
to a false document, amount equally to forgery if the fraudulent 
intention is present. 

A " document " means any paper, parchment, or other material 
used for writing or printing. 

A document is considered to be a false document if any material 
part of it purports to be made by or on behalf of an existing person 
who has not authorised its making, or by or on behalf of a person 
altogether fictitious. A document is also considered to be false, 
though made by a person in his own name, if it is so made with the 
fraudulent intention that it should pass as being made by someone 
else. A document made by a person in his own name may also- 
become a false document if it is wrongly dated as to the time or 
place of making it, where such a particular is material. 

The making of a false document includes not only cases where 
the document is literally made by the offender, but also cases where 
the offender makes any material alteration in, addition to, or erasure 
from, a genuine document. 

It is not essential, in order to constitute the offence of forgery,, 
that the false document should be completed, or should be in such 
a form as would be binding in law ; though, if a person is charged? 
with the forgery of any particular instrument, it must be shown- 
that the document has such a resemblance to it as would be likely 
to deceive an ordinary person. 

The fraudulent intention may be inferred from the document 
itself or proved by external evidence. The intention must be that 
either 

(a) the document should be used or acted on as genuine ; or 

(b) the actions of some person should be influenced by the belief 

that it is genuine. 

It is sufficient if an intention to defraud some person can be 
inferred from all the circumstances of the case, but a mere general 
intention to deceive the public or particular persons, as for instance, 
by forging the signature of an officer to a pass, is not an intent to 
defraud within the meaning of this paragraph. 

Jn some cases it is not necessary to prove a fraudulent intention,, 
the fact that a false document has been made with the intention 
that it should be acted on is sufficient. 

The punishment for forgery varies very much according to the 
nature of the document forged, as will be" seen by referring to the 
Table at the end of the chapter. 

70. It is an offence to utter forged documents, that is to say, uttering 
knowing a document to be forged to attempt to use, or cause any { r s^ 
one else to use, it as though it'were genuine. 

The use of a false document, or any false representation or 
statement, in order to obtain any grant, increase, or payment of 

(a) See also s. 25 of the Army Act. 



106 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Ch. VII. 



Possession 
of forged 
notes, &c. 



Perjury. 



Coinage 
offences. 



Uttering. 



any pay or pension, or any privilege or advantage obtainable in 
pursuance of any warrant, order, or regulation of His Majesty or 
the Secretary of State, is a special offence (a). 

71. The mere purchase or possession of forged bank notes, and 
some similar documents (whether complete or not) with the 
knowledge that they are forged, is in itself an offence. 

It is also an offence to make, sell, or be in possession of any 
bank note paper or any instruments or contrivances for making 
bank notes and similar documents. 

72. Perjury may shortly be defined as the giving of false evidence 
by a witness 'before a court of law. 

The only cases of perjury which will come before courts- martial 
are those where the perjury has been committed before a court- 
martial, or before any court or officer authorised by the Army Act 
to administer an oath (6). Perjury before a civil court will usually 
be dealt with by the civil courts. 

The witness must have been duly sworn by the court or officer, 
i.e., he must either have taken the oath or made an affirmation. 

The false evidence must be an assertion as to some matter of 
fact, opinion, belief, or knowledge, which the witness does not be- 
lieve to be true, or as to the truth of which he knoivs that he is 
ignorant. 

The assertion must be as to some point which is material, i.e., it 
must be as to some point which affects, directly or indirectly, the 
probability of some question which is to be determined by the pro- 
ceeding in the course of which it is given, or the credit of some 
witness giving evidence in the course of the proceeding. 

The parts of the evidence alleged to be false should be set out in 
the charge, and in order to prove a charge of perjury it is not 
sufficient to call one witness only, as that would be merely setting 
oath against oath ; but the evidence of such a witness must be 
corroborated either by the evidence of another witness, or by the 
proof of material and relevant facts concerning it. 

The making of a false declaration in the cases specified in s. 142 
of the Army Act is declared to be perjury, and subject to the 
same penalties. 

73. Coinage offences are numerous, but it is only necessary to 
make special mention of the following : 

(1.) Counterfeiting current gold and silver coin. 

(2.) Counterfeiting current copper coin. 

(3.) Counterfeiting foreign gold and silver coin. 

(4.) Counterfeiting foreign copper or mixed metal coin. 

By " current coin" is meant coin coined in His Majesty's minis, 
and current in any part of His Majesty's dominions. 

The offence is complete even though the counterfeit coin does not 
bear that degree of resemblance to the true coin as would induce 
persons to accept it as genuine. The offence is usually proved by 
finding coining tools in the accused's house, together with pieces of 
counterfeit coin. 

The possession of such tools is also in itself an offence. 

It is a separate offence to utter counterfeit current coin, or gold! 
or silver foreign coin, that is to say, to pass, or attempt to pass, such | 
a coin as genuine knowing it to be counterfeit. 

The existence of such guilty knowledge must depend on the facts 
of the case. The possession of other counterfeit coins, or proof 



(a) See also para. 75 below. 

(6) See Army Act, ss. 29, 70 (5), and Rule 124 (II). 



Malicious Injury to Property. 107 

that the accused had on previous occasions tried to pass counterfeit c^. vil. 
coins, would be strong evidence of such knowledge. 

74. Clipping current gold and silver coin, and defacing any Clipping. 
current coin are also offences. 

75. Under the False Personation Act, 1874, the personation of Persona- 
any person with the intention of fraudulently obtaining any pro- ' 
perty whatever is an offence. 

By s. 142 of the Army Act a person is deemed guilty of persona- 
tion who falsely represents himself to any military, naval, or civil 
authority to be a man in, or to be a particular man in the regular, 
reserve, or auxiliary forces (a). 

(x.) Malicious Injury to Property. 

76. Numerous offences come under the categorv of malicious Malicious 

. . . " injury to 

injuries to property. property. 

The essence of the offence is injury to the property of another ; 
it is immaterial whether the offender is himself benefited by the 
act or not. 

Such acts are offences if done unlawfully or maliciously. 

A person is considered to cause an injury unlawfully and 
| maliciously if he wilfully causes it without any lawful excuse ; that 
is to say, without having either a legal right to act as he does, or a 
bond fide and reasonable belief that he has such a right. And he is 
considered to cause it wilfully, if he causes it by an act which he 
must know will probably cause it, or is reckless whether he causes 
it or not. Generally speaking the act itself justifies a presumption 
of malice until the contrary is shown, e.g., that it was due to 
negligence or accidents. For instance a deliberate trespass on land 
whereby substantial injury is caused to crops amounts to malicious 
injury to property. But the charge must allege that the injury 
was caused maliciously. 

77- Of the various instances of malicious injury the most im- Arson. 
portant is arson. 

Arson consists in unlawfully and maliciously setting fire to 

any building, OB 

anything within a building, under such circumstances that if 

the building were thereby set fire to, this would be arson 

of the building, or 
any mine, or 
any ship, or 
any stack of cultivated vegetable produce, or of hay, heath 

furze, or fern, or of turf, peat, coals, charcoal, wood, or bark, 

or any steer of wood or bark, or 
any crop whether cut or standing, or 
any wood, heath, furze or fern. 

The sending of a letter threatening to commit arson is also an 
offence. 

78. As other examples of malicious injury may be mentioned the Other 
unlawful use of explosives, damage to ships, interference with ^alk-Sous * 
buoys, destruction of canal and harbour works and bridges, obstruc- injury, 
tion of railways, injury to telegraphs, and the wounding of cattle or 
other animals (/>). 

(a.) As to the punishment for this offence, see the section and note thereon. 

(6) The animal must be one which is the subject of theft at common law (as to 
which see note (a) on page 103), or one which is ordinarily kept in a state of confine- 
ment or for some domestic use. 



108 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Ch. VII ( x j ) Miscellaneous Offences. 

Bigamy, 79. Bigamy is committed by a person who, being already married 

to one person, goes through the form of marriage with another, or 
who goes through the form of marriage with another person 
knowing that person to be married to some one else. The law 
does not include the case of a person marrying a second time 
whose husband or wife has been continually absent from such 
person for seven years then last past, and has not been known by 
that person to be living within that time ; the burden of proving- 
such knowledge is upon the prosecutor when the fact that the 
parties have been continually absent for seven years has been 
proved. It is also a good defence if the accused can show that 
he or she had reasonable grounds for believing that his or her wife 
or husband was dead at the time of the second marriage. 

Treason. 80. The only forms of treason which need here be mentioned 

are 

(1.) Levying war against the Sovereign in any of His dominions. 
(2.) Aiding the enemies of the Sovereign. 

Thus, an officer who betrays his trust, or a soldier who deserts in 
the field and joins the enemy, is guilty of high treason inde- 
pendently of his military offence. 

Certain other acts of treason (namely, compassing to levy war 
against the King, and compassing to move any foreigner to invade 
the King's dominions), can, under an Act of 1848, be also treated as 
felonies ; these acts are commonly known as "treason felonies," and 
so called in s. 41 of the Army Act. 

Being at 81. The mere fact of a criminal sentenced to penal servitude 

large whilst being at large within any part of His Majesty's dominions during 
n ' s term of penal servitude without some lawful cause is anf 
offence. 

82. Offences relating to escape from civil custody would probably 
never be tried by court-martial, and it seems only requisite to 
observe here that 

if a person assists any alien enemy who is a prisoner of war 
within His Majesty's dominions, whether in confinement or 
on parole, to effect his escape ; or 

if a person (being a British subject) on the high seas assists any[ 
such prisoner of war who has escaped from His Majesty's 
dominions in his escape towards any other country ; 

he is, in either case, guilty of an offence. 

83. It is an offence either 

(a) To conspire to accuse any one falsely of a crime, or to do 
anything to obstruct the course of justice ; or 

(6) To try to dissuade witnesses from giving evidence, in order 
to obstruct the course of justice ; or 

(c) To obstruct the execution of any legal process ; or 

(d) To conceal or procure the concealment of a felony (a) ; or 

(e) To enter into an agreement for valuable consideration tc* 

refrain from prosecuting a person for a felony (), or to 
show favour to the accused in any such prosecution. 



servitude. 
Escape. 



Offences 
relating to 
the obstruc- 
tion of 
justice. 



(a) As to what offences are felonies, see Table at end of chapter. 



Offences and Punishments. 



103 



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Whether 
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Supplying poison, &c. 



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110 



OFFENCES PUNISHABLE BY ORDINARY LAW. 





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Arson .. .. .. 

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Common assault . . 


With intent to commit felon; 


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ttempt to commit an offence 
See also "Arson," " 
"Murder," "Carnal 
of," " Procuration," " 




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Offences and Punishments. 



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urglary 

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arnal Knowledge 


: oj 

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co to 

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2 3Q IP 

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Cheating at cards, &c. 
Obtaining execution of val 
Deceiving the public . . 


Conspiring to defraud 


Obliterating mark on publ 
hllclren 


Ill-treatment of child -. . 


Abandonment or exposure 
Concealment of birth 

lipping. See " Coinage." 


S .j" 

'a | 
ll 

o 
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B B 


B 


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112 



OFFENCES PUNISHABLE BY ORDINARY LAW. 



Maximum Penalty. 


2 

09 
*H 

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S- 
O 
H 

OD 
T3 

5 
'? 

a> 



"3 

a> 

PM 


Penal servitude for 7 years (a). 
Penal servitude for 7 years (a). 
Imprisonment for 1 year, or, if the offender 
has been previously convicted of the same 
offence, penal servitude for 7 years. 
Imprisonment for 1 year, with or without hard 
labour, or, if the offender at the time of the 
uttering has any other such coin in his 
possession, or if he utters another such coin 
within 10 days, for 2 years, with or without 
hard labour. 


Imprisonment for 6 months, with or without 
hard labour : for a second offence, imprison- 


mentfor 2 years, with or without hard labour ; 
for a subsequent offence, penal servitude for 
life. 


Penal servitude for 5 years (a) if the coins are 
gold or silver ; imprisonment for 1 year, with 
or without hard labour, it' the coins are copper. 


bC H 

S 

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s 


1 1 

s 

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PM 


silver coin, or (2) current copper coin. 
Penal servitude for 14 years (a). 
Imprisonment for 1 year, with or without 
hard labour. 




3 




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terfeit curren 






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coining tools 


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olnnso 

Counterfeiting 


Counterfeiting 
Counterfeiting 
Counterfeiting 


Uttering coun 






d 


tlD 

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Possession of 
intention of 


Possession of 


Clipping curr 
Defacing any 


Concealment 
Conspiracy. ! 

" Obstruction 




U 




















** 



Offences and Punishments. 



113 



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Use of explosives . . 4* . . 


Poisoning with intent to injure.. . . . 
Poisoning if life endangered or grievous 
inflicted thereby. 
Furious driving, racing, or wilful neglect, 
charge of vehicle causing bodily harm. 
isguise at Night Being disguised at night 
of committing felony. 
Isorderly Houses Keeping of disorderly h 


mbezzleinent 
Embezzlement . . .4 44 44 . 
Fraudulently converting chattels, &c., of whii 
control by virtue of appointment in public 
nterlng. See " Housebreaking." 


scape 

Being at large whilst sentenced to penal servil 
Assisting alien enemy to escape . . 
Assisting prisoner of war who has escapi 
Majesty's dominions to escape towards anot] 
xplosives. See " Dangerous Acts." 
xtortlon 
Extortion .. 44 44 44 . . 


Extortion by means of threats to accuse pel 
punishable with death or penal servitude or 


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114 



OFFENCES PUNISHABLE BY ORDINARY LAW. 













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O/wioes and Punishments. 



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119 



CHAPTER VIII. 



POWERS OF COURTS OF LAW IN RELATION TO 
COURTS-MARTIAL AND OFFICERS. 

Introductory. 

1. The members of courts-martial and officers in the exercise Coiu-ts- 

of individual authority are, like the inferior civil co urts and * rtial aiKt 
magistrates, amenable to the superior civil courts for injury amenable 
caused to any person by acts done either without jurisdiction, or in for ac ^ s . 
excess of. jurisdiction ; although there is not, in the ordinary sense oCt o7in h 
of the word, any appeal from the decision of a court-martial or excess of 
from the order of an officer. Such injuries will equally be inquired 
into whether they affect the person, property, or character of the 
individual injured ; and whether the individual injured is a 
civilian or is subject to military law. 

2. There is, however, this material exception in the case of a Exceptions 
person subject to military law, that if the injury affects only his Jn'-^g S f 
military position or character, a court of law will not interfere, affecting 
He has agreed to subject himself to military law in those respects, on .'y 
and must take the consequences. Thus, the dismissal of an 

officer from the service, the deprivation of rank, or the reduction 
or deprivation of military pay, will not be remedied by a court 
of law (a). 

3. The jurisdiction of a tribunal may be limited by conditions Meaning of 
as to its constitution, or as to the persons whom or the offences 

which it is competent to try, or by other conditions which the 
law makes essential to the validity of its proceedings and judgments. 
If the tribunal fails to observe these essential conditions, it acts 
without jurisdiction. An individual officer acts without jurisdic- 
tion if he exceeds the limits of the authority conferred on him, 
whether by Act of Parliament, the custom of the service, or 
lawful delegation from a superior officer. 

4. Thus a court-martial will act without jurisdiction if it is not ui us t ra - 
propeiiy constituted ; for instance, if the number of members is tions of 
below the legal minimum, or if all the members of a general court- ac -f^ g 
martial have not held commissions for the three years preceding ju'risdic- 
the day of assembling the court, or if the president is not of the tion - 
proper rank, or has not been properly appointed. For the above 
reason it is directed by the Rules of Procedure that a court- 
martial, before acting, shall ascertain that it is properly con- 
stituted, a provision which, as will be seen, is required foV the 
protection of the members themselves (6). 

5. An officer who without due authority confirms the finding F urt her 
and sentence of a court-martial, and a commanding officer who illustra- 
punishes a warrant officer, will also act without jurisdiction. tions - 
Again, a court-martial or officer dealing with a person who is 

not amenable to military law, as if he were so amenable, will act 
without jurisdiction (c). So, too, if a court-martial convicts the 

(a) See Poe's case, below, para. 12; Mansergh'f case, below, paras. 18-20; and 
Roberts' case, below, paras. 21, 22 ; and Re TufiiM, p. 124, note (a). 
(') See Rule 22. 
(c) See Comyn v. Saline, and other cases, below, paras. 52, seq. 



120 



POWERS OF COURTS OF LAW, ETC. 



Result of 
acting with- 
out jurisdic- 
tion. 
Excess 
jurisdic- 
tion. 



Ch. VIII. accused of an offence which is not an offence under the Army Act 
or (save as provided by s. 56 of the Array Act) of an offence 
with which he was not charged, the court acts without juris- 
diction. Where the offence is not properly charged, the accused 
may be held not to have been charged with the offence at all ; 
but the proceedings of military courts will not be scrutinised 
with the same strictness as those of inferior civil courts. 

6. The result of acting without jurisdiction is that the act is 
void, and each member of the court-martial, or the officer who so 
acted, is liable to an action for damages. 

7. The consequences of exceeding the bounds of jurisdiction are 
the same as those of acting without jurisdiction. For instance, when 
a court having power to award two years' imprisonment, sentenced 
the accused to fifteen years' imprisonment, the sentence being in 
excess of that which the court was authorised to pass, was held 
to be void, and the members of the court were held liable to an 
action for damages (a). Other cases of this class arise where 
jurisdiction is exercised with cruelty or oppression amounting to an 
abuse of it. A power to award summary punishment or imprison- 
ment does not justify a court or officer in causing the punishment 
to be inflicted in a barbarous manner, or with circumstances 
of undue severity ; and in such cases, though there is a jurisdiction, 
yet the excuse for the act of the court or officer, which 
would otherwise exist by reason of the jurisdiction, is taken away 
by reason of the excess in the mode of exercising it (b). 

8. The proceedings by which the courts of law supervise the acts 
of courts-martial and of officers may be criminal or civil. Criminal 
proceedings take the form of an indictment for assault, false im- 
prisonment, manslaughter, or even murder. Civil proceedings 
may either be preventive, i.e., to restrain the commission or con- 
tinuance of an injury ; or remedial, i.e., to afford a remedy for 
injury actually suffered. Broadly speaking, the civil jurisdiction 
of the courts of law is exercised as against the tribunal of a court- 
martial by writs of prohibition or certiorari ; and as against 
individual officers by actions for damages. A writ of habeas corpus 
also may be directed to any officer, governor of a prison, or other, 
who has in his custody any person alleged to be improperly detained 
under colour of military law. The writs of prohibition, certiorari, 
and habeas corpus will be first discussed, then the subject of actions 
for damages, and lastly, that of liability to criminal proceedings. 



Modes of 
interposi- 
tion of 
courts of 
.law. 



Definition 
of the writ 
of prohibi- 
tion. 



When pro- 



(i.) Writ of Prohibition. 

9. The writ of prohibition issues out of the High Court of Justice 
to any inferior court, when such inferior court concerns itself with 
any matter not within its jurisdiction, or when it transgresses the 
bounds prescribed to it by law. The writ forbids the inferior court 
to proceed further in the matter, or to exceed the bounds of its 
jurisdiction ; and if want of jurisdiction in the inferior court be 
once shown, any person aggrieved by the usurpation of jurisdiction 
is entitled to the writ as a matter of right. 

10. The writ will not be granted for irregularity in the proceed- 



hibition will ings or wrong decision of the merits: nor when it can be of no 
use, as, for example, after a sentence lias been carried into execu- 



issue. 



(a) Frye v. Ogle, below, para. 41. 

(b) The question whether an officer is liable to an actir n for ordering an arrest or 
prosecution maliciously and without probable cause, will be considered separately. 
See below, paras. 67-74. 



Writ of Prohibition. 121 

tion ; nor will it issue on the ground that the facts which establish Ch. VIII. 
a military offence disclose at the same time a greater offence (e.g., 
high treason) cognisable by the civil courts (a). 

11. Applications for a prohibition to restrain courts-martial g^ Y; 92 
have hitherto been few, and uniformly unsuccessful. The earliest 
reported case is that of Grant v. Gould (b). In 1792 Serjeant 

Grant of the 74th Regiment was tried by court-martial on a 
charge of having persuaded two drummers of the Coldstream 
Guards to desert, and enlist in the service of the East India 
Company. He was convicted and sentenced to be reduced to 
the ranks, and to receive one thousand lashes. Grant moved for 
a prohibition to prevent the execution of this sentence on the 
ground that he was not a soldier and therefore not liable to be 
tried by court-martial, that evidence was improperly admitted and 
rejected, and that he was convicted of an offence not specifically 
charged. The court, being of opinion that at most an error in the 
proceedings had been made, refused the writ. At the same time, 
Lord Loughborough, in delivering the opinion of the court, affirmed 
the general principle that " Naval Courts-Martial, Military Courts 
' Martial, Courts of Admiralty, Courts of Prize, are all liable 
" to the controlling authority which the courts of Westminster 
" Hall have from time to time exercised for the purpose of pre- 
" venting them from exceeding the jurisdiction given to them." 

12. The case of Lieutenant Poe (c), which occurred in 1832, is Poe's case, 
the authority for the proposition that a prohibition will not issue 1832 - 
after sentence confirmed and executed. Lieutenant Poe, being a 
passenger on board the ship Ciesar on her way to England, was 
accused of stealing a 51. note and certain articles of wearing apparel 

from his servant's trunks, which were kept in his (Poe's) cabin. On 
investigation of the charge by the captain of the ship and other 
officers on board, Lieutenant Poe was expelled by the officers and 
passengers on board from their table and society during the 
remainder of the voyage. Lieutenant Poe never took anj- measures 
to vindicate his honour, and was consequently tried for conduct to 
the prejudice of good order and military discipline, found guilty, and 
-sentenced to be dismissed the service. The sentence was confirmed 
by the King and carried into execution ; and an application on 
behalf of Lieutenant Poe that a prohibition might issue " to the 
Judge-Martial and Advocate-General of his Majesty's forces" to 
restrain the execution of the sentence was refused, Chief Justice 
Denman observing that even supposing the case of Grant v. Gould 
to furnish some argument that a writ of this nature might be 
directed to him (the Judge-Advocate) before execution of the 
sentence, still it was impossible to discover what he could be required 
to abstain from after execution. 

13. The later case of Serjeant M'Carthy shows that a pro- M'Carthy't 
liibition will not issue merely because the evidence given in case > 186(5 - 
support of a military charge discloses a higher civil offence. In 

1866 Serjeant M'Carthy (d) was tried by a general court-martial on 
a charge of " coming to the knowledge of an intended mutiny, and 
not revealing such knowledge to his superior officers." The evidence 

^(a) As to the general law, see the exhaustive opinion of the Judges in Mayor of 

Lundon v. Coz, L. R., 2 H. L., 229, and the cases there cited. The right to a writ 

of prohibition has frequently been considered with reference to the Ecclesiastical 

Courts, and it is clear that the courts of la\v will not entertain questions of their 

practice, so long as they do not exceed thoir jurisdiction. 

(6) 2 H. Blackstone's Reports, 69. McArthur on Courts-Martial, 4th edition. 
i. 120. 

(c) Be Poe, 5 Barn, and Adol., 631. 

(<*) 14 W. R. (Ir.). 916. 



122 



POWERS OF COURTS OF LAW, ETC. 



Ch. VIII 



No example 
of issue of 
prohibition 
to a courtr 
martial. 



To officer. 



Dis- 
obedience of 
prohibition. 



Definition 
of the writ 
of certio- 
rari. 



When cer- 
tiorari will 
issue. 



MansergVs 
case, 1858. 



His trial by 
court- 
martial. 



given implicated him in the Fenian conspiracy, ana showed 
endeavours on his part to induce soldiers to become members of 
that conspiracy, and various other acts amounting to overt acts of 
treason. After the close of the prosecution the court-martial was 
adjourned in order to permit the prisoner to apply to the Court of 
Queen's Bench (Ireland) for a writ of prohibition on the ground that 
the evidence establishing the military offence disclosed also that 
the prisoner was guilty of treason, in which case a court-martial 
would have no jurisdiction. The court held that the military offence 
does not merge in the greater offence, and declined to accede to 
the application. 

14. Although the writ of prohibition has never actually been 
issued to a court-martial, there seems no doubt that it might issue 
in a proper case ; as, for example, if a court-martial were proceeding 
to try a person not subject to military law, or had passed a sentence 
which they had no power whatever to pass. 

15. The question whether a writ of prohibition would issue to 
an officer exercising individual authority does not seem ever to have 
been raised. 

16. Disobedience of a prohibition is a contempt of court, and as 
such punishable by fine and imprisonment at the discretion of the 
court which granted the writ. 

(ii.) Writ of Certiorari. 

^ 17. Certiorari is a writ issuing (in most cases) out of the High 
Court of Justice to the judges or officers of inferior courts, and 
commanding them to certify and return the record of a matter, 
e.g., a conviction or order, depending before them, to the end that 
more sure and speedy justice may be done. If the conviction or 
order of the inferior court is found to be bad in law, it will be 
quashed by the High Court. 

In ordinary cases the writ is issued on the application of the 
person aggrieved almost as a matter of course, unless he has by his 
conduct precluded himself from taking an objection (a). In the 
case of a court-martial sentence, the writ will issue only when the 
rights affected by the judgment of the court are civil rights, and 
the court is acting without jurisdiction : it will not issue when 
the rights affected are dependent on military status and military 
regulations (b). 

18. Major Mansergh's case was as follows : In January, 1858, 
Major (then Captain) Mansergh was on duty with his regiment, the 
6th Foot, at Calcutta, under the command of Colonel Barnes. In 
February, 1858, Brevet-Major Mansergh was gazetted to a majority 
in the 15th Foot, at that time stationed in England. Notice of this 
appointment was transmitted to India and notified in general and 
regimental orders in the usual way, after which notification Major 
Mansergh ceased, according to the rules of the army, to belong 
to the 6th Foot. The latter regiment was about to start on active 
service, when Colonel Barnes informed Major Mansergh of his pro- 
motion and desired him to hand over his company to another 
officer, which he did accordingly. 

19. Subsequently Major Mansergh, conceiving that the notification 
of his appointment to the 15th Foot had been 'obtained by Colonel 
Barnes for the purpose of excluding him from active service, wrote 

(a) K. v. Justices of Surrey, L. R., 5 Q. B. 467, and see on the general law Colonial 
Hunk v. Willan, L. R., 5 P. C. 417. 

(b) Re Mansergh, 1 Best & Smith, 400 ; 30 L. J. (N.S.) Q. B. 296. Re Roberts, 
reported in " Times," llth June, 1879. 



Writ of Cert iorari. 123 

a letter to the Colonel expressing that view in strong language. Ch. VIII. 
For this lie was placed under arrest, and subsequently tried by 
court-martial on a charge of having addressed to his superior officer 
a letter containing highly offensive and insulting language, such 
conduct being grossly insubordinate, highly unbecoming a commis- 
sioned officer, and subversive of military discipline. Major Mansergh 
was found guilty and sentenced to be dismissed the army, and the 
proceedings having been confirmed, were sent to England and 
deposited with the Judge Advocate-General. Major Mansergh 
then applied to the Court of Queen's Bench for a rule calling on 
the Judge Advocate-General to show cause why certiorari should 
not issue to bring up, in order that it might be quashed, the 
record of his conviction ; on the ground that after his promotion he 
ceased to be within the command of the Commander-in-Chief in 
India, and that consequently the court-martial had no jurisdiction 
to try him. 

20. The Court refused the application Chief Justice Cockburn Kefusal of 
observing, " I quite agree that when the civil rights of a person in application 
military service are affected by the judgment of a military tribunal, r ari? er 
in pronouncing which the tribunal has either acted without juris- 
diction or has exceeded its jurisdiction, this court ought to 
interfere to protect these civil rights, e.g., where the rights of life, 
liberty, or property are involved, although I do not know whether 
the latter case could occur. Here, however, there was nothing of 
the sort, the only matter involved was the military status of the 
applicant a thing which depends entirely on the Crown, seeing that 
every person who enters into military service engages to be entirely 
at the will and pleasure of the Sovereign. Then there is this 
additional fact that these proceedings originated abroad in a country 
the tribunals of which are not subjected to our jurisdiction. It is 
contended that because we have the record of the proceedings in 
the country we have jurisdiction over it. Assuming that for a 
moment, yet when we look at the particular nature of the case 
before us, we see that the military status of the applicant alone 
is affected, and consequently if he had just cause of exception to 
the act of the tribunal by which he was sentenced, he might have 
appealed to the Queen to reconsider the matter with the advice of 
her Judge Advocate. For these reasons I am of opinion that in 
this case we have no jurisdiction to grant a certiorari ; besides 
which, certiorari being a discretionary writ, we most certainly ought 
not in the exercise of our discretion to grant it if we had the 
jurisdiction." Three other judges concurred, and the application 
was refused. 

21. A similar application in June, 1879, by Captain Francis Robertas 
Eoberts, of the 94th Regiment, was equally unsuccesful. Captain case > 
Roberts founded his application on the ground that the sentence 
of the court-martial dismissing him from the service was invalid, 
in that it simply sentenced him to be dismissed the service without 
stating the cause of dismissal. The charge against Captain Roberts 
appears to have been twofold : (1) That lie had been guilty of 
scandalous conduct unbecoming an officer and gentleman in having 
written and sent to certain persons statements wilfully false and 
malicious respecting Colonel Lord John Taylour, his commanding 
officer. (2) That he had been guilty of conduct prejudicial to good 
order and military discipline in writing the statements referred to, 
which were charged simply as false. An affidavit was filed by 
Mr. Roberts stating that since the sentence he had been occupied in 
various attempts to obtain a revision of the sentence. 



124 



POWERS OF COURTS OF LAW, ETC. 



No distinc- 
tion be- 
tween his 
case and 
Mansergh's 
case. 



Writ of 

Habeas 

Corpus, the 

remedy 

against 

illegal 

custody. 



Ch. VIII. 22. It was attempted to distinguish this case from that of 
Mansergh, on the ground that here civil rights were indirectly 
affected, as Mr. Eoberts would lose his rights to pension or retiring- 
allowance, and would lose the sum he had paid for purchase. But 
it was at once pointed out by the Chief Justice and Mr. Justice 
Mellor, that the rights referred to were purely military in their 
nature and dependent on military status and military regulations, 
and Mansergh's case was considered decisive against granting the 
application (a). 

(iii.) Writ of Habeas Corpus. 

23. Any person who is detained in what he conceives to be illegal 
custody by order of a court-martial or other military authority, 
can apply for a writ of habeas corpus. This writ is the most cele- 
brated writ in English law, being the great remedy for a person 
wrongfully deprived of his liberty. There are varieties of it which 
are employed for merely removing prisoners from one court to 
another for the better administration of justice ; but by far the most 
important species is that which affords the above remedy, and is 
known as habeas corpus ad subjiciendum. It is addressed to the 
person who detains another in custody, and commands him to pro- 
duce the body of the prisoner to undergo and receive whatever the 
judge or court awarding the writ shall consider in that behalf. It 
issues out of the High Court of Justice, and into all parts of the 
King's dominions, save as provided by 25 & 26 Viet. c. 20, which 
enacts that no writ of habeas corpus shall issue out of any of the 
courts in England into any colony or foreign dominion of the 
Crown where His Majesty has a lawfully established court of justice 
having authority to issue this writ and to ensure its due execution. 
The person to whom i t is addressed must make a return to the writ 
stating why he holds the prisoner in custody ; and must bring 
the prisoner into court. On the return of the writ the prisoner 
is either discharged, or, if the return is sufficient, i.e., shows sufficient 
cause for the detention in custody, is remanded to custody, or is 
admitted to bail. 

24. The writ will issue to any person who has a person in cus- 
tody, whether civil or military, if the affidavits in support of the 
application show some probable ground for awarding it. The writ 
will not as a rule issue to question the mode in which military 
jurisdiction has been exercised (6) ; but if a particular formality 
is by statute requisite to make valid an order (for instance) for 
imprisonment, and the formality is shown not to have been 
followed, then it may be granted (c). 

What is a 25. It would seem, as a rule, to be a sufficient return to the writ 
return to ^ iat * ne P erson i n custody is a person subject to military law, and 
writ. that all the proceedings were according to military law (d). 

General dis- 26. Blake's case (e), in which the application for the writ was 
inclination 

(a) "Times," llth June, 1879. In the case of He Tvffnell, L.E., 3 Ch. D., 164, a 
petition of right was presented by an army surgeon, who had been compulsorily 
retired on half pay, for the injury thereby sustained by him. A demurrer by the 
Attorney-General ~to the petition was allowed, the Vice-Chancellor stating the law 
clearly to be that " every officer in the army is subject to the will of the Crown 
and can be removed and put on half pay, or dealt with as the Crown, with a view 
to the public convenience, thinks best." See also K. v. Secretary of State, L. K. [1891] 
2Q.B., pp.330, 331. 

(6) Blake's case, 2 M. and S., 428. 

(c) Allen's case, 30 L. J. (N.S.), Q. B., 38 ; 7 Jur. (N.S.), 234, but see now Army Act, 
s. 172 (4), and below, para. 37. 

(rf) ft. v. Suddis, 1 East, 306 ; and as to general law, Brenans case, 10 Q. B., 492. 

(e) 2 M. and B., 428. 



When 

habeas 
corpus will 
issue. 



Writ of Habeas Corpus. 125 

refused, is a strong instance of the disinclination of courts of law to Ch. VIII. 
interfere with matters of military discipline. The writ was moved of e ^^ a to 
for on behalf of Lieutenant Blake, of the 55th Regiment, to be interfere 
addressed to the commanding officer of the infantry barracks at "' ltn 
AVindsor. The affidavit in support of the motion stated that Lieu- discipline, 
tenant Blake, being on leave and hearing that there were certain Biake - s case> 
charges alleged against him, voluntarily surrendered himself to take 1814. 
his trial, that on the 21st September he was placed under arrest 
and in close confinement, and that until the latter end of October 
he was not permitted to quit his room, but afterwards, on a 
representation that his health suffered, was allowed to take exercise. 
On the 1st November, not having been furnished with any copy 
of the charges against him, he presented a memorial to the 
Conimander-in-Chief, but did not receive any answer. On the 16th 
of November he was officially informed that a warrant had been 
signed for holding a court-martial, and was furnished with a copy 
of the charges, which consisted among others of certain offences 
stated to have been committed at Windsor towards an officer of the 
same regiment. On the 22ud, the 55th Regiment was ordered on 
foreign service, and shortly afterwards sailed for Holland. The 
affidavit then stated that all or many of the witnesses who might be 
called for the prosecution or defence had sailed with the regiment, 
that the laws of this realm would not permit him to be sent to a 
foreign country for trial, and therefore he could no be brought 
to trial before the return of the regiment. It further alleged 
that, as a matter of fact, a sufficient number of officers might at any 
time have been conveniently assembled for the purpose of con- 
stituting a court-martial ; and therefore there had been ample 
opportunity for conveniently assembling one between the arrest 
and the signing of the warrant, and also between the signing of 
the warrant and the sailing of the regiment. 

27. The Court inquired if there was any instance of a habeas Rule nisi 
corpus to take a military subject out of military arrest, and were granted, 
referred to the case of Serjeant Wade (a) where a rule nisi (i.e., a 

rule calling on the other side to argue the question and show 
why the writ should not issue) had been granted. Mr. Justice 
Dampier, however, said he hesitated about granting a rule nisi, 
because upon the question whether a court-martial could be con- 
veniently assembled, if the return should be general that a court- 
martial could not be conveniently assembled, the court would be 
concluded, and he conceived the truth of such return could hardly 
be entered into upon an action for a false return, and Mr. Justice 
Le Blanc concurred. A rule nisi was, however, granted, and on 
its coming on to be argued, an affidavit from the Judge Advocate- 
General was produced, stating that proceedings were instituted 
for bringing Blake to trial as soon after his arrest as could con- 
veniently be done ; and that he believed Blake would have been 
tried before, had not the trial been postponed partly on account 
of the absence in the West Indies of persons alleged by Blake 
to be material for his defence, and partly on account of the embark- 
ation of the 55th Regiment. 

28. The Court refused the writ, Lord Ellenborough, C. J., Rule dis- 
observing, "Up to the 16th November the applicant seems to have charged, 
thought it a fair time, and the delay since has been satisfactorily 
explained ; it is not a wanton or oppressive delay, but arising out 

of the circumstances of the country. We cannot lay down any 

(a) Cited in the report of this case, 2 M. & S., 429, n. 



126 



POWERS OF COURTS OF LAW, ETC. 



Ch. VIII 



Sufficiency 
of return 
that 

prisoner is 
in custody 
under 
sentence of 
competent 
court. 

Suddis' case 
1801. 



Jones v. 

Danvers, 

1839. 



Instances of 
discharge 
obtained by 
writ. 



Douglas' 
case, 1842. 



Porrett's 
~a.se, 1844. 



general rule, but must in a very great degree give credence to 
people in high situations when they depose that all has been done 
which could conveniently and according to the course of office be 
done, and unless something be shown to the contrary " (a). 

29. The leading authority as to the sufficiency of a return to 
the writ which states that the prisoner is in custody under the 
sentence of a court-martial competent to pass such sentence on 
him, is Suddis' case, decided in 1801 (b). 

30. Suddis was a gunner of the Royal Artillery sentenced at 
Gibraltar by a general court-martial to fourteen years' transporta- 
tion for having received articles stolen from a warehouse ' in 
Gibraltar. A writ of habeas corpus was directed to the Governor 
of Portsmouth to bring him up from custody. It was held a 
sufficient return to the writ that the defendant was in custody 
under the sentence of a court of competent jurisdiction to inquire 
into the. offence and to pass such a sentence, without setting forth 
the particular circumstances to warrant the sentence. Lord 
Kenyon, C. J., said, " We are not now sitting as a Court of Error 
to review the regularity of these proceedings ; nor are we to hunt 
after possible objections." And Mr. Justice Grose, " It is enough 
that we find such a sentence pronounced by a court of competent 
jurisdiction to inquire into the offence, and with power to inflict 
such a sentence ; as to the rest we must presume omnia rite 
acta." 

31. In the case of Jones v. Danvers (c) it was held that the court 
cannot grant a habeas corpus to bring up a defendant who is in 
military custody, for the purpose of charging him in execution for 
a civil debt. By the court : " We have only civil jurisdiction, and 
have no authority to change the custody in such a case as this." 

32. In the two following cases the prisoner was discharged by 
means of a writ of habeas corpus ; in the first case because the 
return did not sufficiently show the military character and obliga- 
tions of the prisoner, in the second for want of jurisdiction in 
the officer who confirmed the sentence of the court-martial. 

33. Captain Douglas, of the 49th Madras Native Infantry, 
was committed by a magistrate to prison as a deserter, and after- 
wards by authority of the Secretary at War was given up to 
Lieut. -Colonel Hay, commanding the East India Company s troops 
at Chatham, and by him removed under military arrest to that 
place. A habeas corpus was thereupon obtained addressed to 
Colonel Hay and eveoy officer or person having the custody of 
Captain Douglas, and he was brought into court in obedience to 
the writ. The return to the writ alleged that the prisoner was 
detained as a deserter under 5 & 6 Viet. c. 12, s. 22, but did not 
expressly show that he was a soldier and ought to be with his corps. 
Captain Douglas was in consequence discharged (d). 

34. Porrett, a soldier of the Bombay Army, was sentenced 
by a general court-martial to seven years' transportation for 
embezzlement. The sentence of the court-martial was confirmed 
by Sir C. Napier, the Governor of Sindh. A writ of habeas 

(a) In the case of Lieut. Hall (R. v. Cuming, E. p. Hall, L. R. 19 Q. B. D. 
1.3), a writ of habeas corpus was applied for to discharge a lieutenant in the Navy 
who had been arrested by order of the Admiralty for alleged desertion, and 
was detained as a prisoner on board one of Her Majesty's ships under the 
command of Captain Cuming, with a view of being brought to trial before a court- 
martial. The court admitted Lieut. Hall to bail while the case was pending, but 
ultimately refused the writ. 

(b) R. v. Suddis, 1 East, 306, 

(c) 5 M. & W. 234. 
W 3 Q. B. 825. 



Writ of Habeas Corpus. 1 27 

corpus was obtained and Porrett was discharged, as it was shown ch. VIII. 
that Sir C. Napier had no power to confirm the sentence of the 
court (a). Had the question been one of military procedure instead 
of jurisdiction, the result would doubtless have been different. 

35. When a military prisoner is detained in a prison without Allen's case, 
any legal warrant or order for his custody in that prison, he can 18t5 - 
obtain his discharge by habeas corpus. In 1859 Lieutenant W. H. 

C. Allen was tried by a general court-martial at Shahjehanpore 
for the murder of his native servant, and, being found guilty of 
manslaughter, was sentenced to four years' imprisonment without 
hard labour. General Lord Clyde confirmed the sentence, and 
ordered him to be imprisoned in the Fort of Agra. On the 29th 
November 1859, Lord Clyde gave a written order for his removal 
in military custody to England, there to undergo the remainder 
of his sentence. On arrival he was successively committed to 
Millbauk, the military prison at Weedon, Newgate, and the 
Queen's Prison. After having been four months in the Queen's 
Prison he applied to the Court of Queen's Bench for a writ of 
habeas corpus on the ground that his detention was illegal, there 
being no such written order as required by the Mutiny Act to the 
keeper of the Queen's Prison to receive Lieutenant Allen into his 
custody. In the result the prisoner was discharged. 

36. The Chief Justice Cockburn observed that it was enough Observa- 
to say that there was no order in writing under the provisions of p2" s f of 
the Mutiny Act by virtue of which the keeper of the Queen's justice 
Prison could detain Lieutenant Allen. All that appeared was Cockburn. 
that Lord Clyde, the commanding officer of the district, having 

first directed that Lieutenant Allen should be placed in Agra, 
afterwards made an order for his removal to this country to undergo 
the remainder of his sentence ; but it did not appear that either 
the officer commanding the regiment, or Lord Clyde, had made any 
order on the keeper of the Queen's Prison to receive Lieutenant 
Allen. The deficiency was attempted to be made up by an order 
under the hand of the Adjutant-General representing the Com- 
mander-in -Chief, and stating that Lieutenant Allen had been 
convicted by a court-martial in India. That, however, was not 
a legal warrant, and under the circumstances the court was con- 
strained, though unwillingly, to discharge the prisoner (b). 

37. It is now provided by the Army Act (c\ that, where a military Military 
prisoner is for the time being in any custody in which he might custody not 
legally be kept, informality or error in the order or warrant, or the byTeason, 
authority by or in pursuance whereof he is detained, shall not merely of 
make the custody illegal ; and any such order or warrant may be ^formality, 
amended. A case such as that of Lieutenant Allen can, therefore, 
scarcely occur again. 

38. Where a writ of habeas corpus was issued to an officer to Application 
produce a recruit who was detained as a deserter, and the officer by for attacl - 
direction of the Horse Guards discharged the prisoner, and made against 

no return, the court were of opinion that he ought to have returned officer 
the fact of the discharge, but would not grant an attachment for make 8 10 
contempt (d). return. 

39. In Simmons on Courts-martial (e) a case is cited of a store- Canadian 
keeper who had been convicted by court-martial under the 17th case cited 

(a) Perry's Oriental cases, 414. 

(b) 30 L. J. (JS.S.), Q. B., 38 ; 7 Jurist (W.S.), 234. 

(c) Section 172 (4), and see also sect. 165. 

(d) Re Gavin, 15 Jurist, 329. 

(e) 7th edn., p. 165. 



128 POWERS OF COURTS OF LAW, ETC. 

Ch. VIII. Section of the Mutiny Act on a charge of embezzling or fraudu- 

in Simmons ^ ent ^y misapplying, and imprisoned in a civil gaol, obtaining his 

on Courts- release by habeas corpus from the Court of Queen's Bench at 

martial. Montreal. The court adjudged the commitment to be void by 

reason of the form of charge and finding, and ordered the prisoner 

to be discharged, " because the charge and conviction were in the 

alternative .... without any certainty as to any or either 

of the two charges in the disjunctive, and this is matter of 

substance." 

(iv.) Actions for Damages. 

Actions 40. It is a general rule of law that magistrates and others, who, 

inembers of act ing without jurisdiction, or in excess of their jurisdiction, 
courts- violate the personal rights of any person by causing his arrest, 
martial and imprisonment, or otherwise, are liable to* an action for damages (a), 
officers." Accordingly, members of a court-martial who try a person not 
subject to military law, or for an act which is not an offence cog- 
nisable by them, or who pass a sentence which they have no power 
to pass, are all liable to an action at the suit of the person aggrieved ; 
and the officer who confirmed the proceedings will also be liable (V). 
The same rule is applied to officers in the exercise of individual 
authority ; so soon as they transgress the bounds of their lawful 
authority they expose themselves to an action, though they may 
have acted with entire bona fides. 

illegal 41. The case of Lieutenant Frye (c), which occurred in 1743, and 

court" Ceby i g especially remarkable from its seqiiel, is a leading authority- 
martial, respecting the liability of all who are parties to an illegal sentence 
Frye v. Ogle, passed by a court-martial. Lieutenant Frye, of the Marines, was 
brought to a court-martial at Port Royal, in Jamaica, by his captain, 
for disobedience in refusing to assist another lieutenant in carrying 
an officer prisoner on board ship without a written order from 
the captain. Part of the evidence produced against Lieutenant 
Frye at the court-martial consisted of depositions made by illiterate 
natives, whom he had never seen or heard of, and reduced into 
writing several days before he was brought to trial ; and upon his 
objecting to the evidence he was brow-beaten and overruled. 
Lieutenant Frye was sentenced to 15 years' imprisonment, and 
rendered for ever incapable of serving His Majesty, though the 
Court had only power to award two years' imprisonment. On 
his arrival in England, his case was laid before the Privy Council 
and the punishment remitted by His Majesty. 

Damages 42. Some time afterwards he brought an action in the Court of 

recovered Common Pleas against Sir Chaloner Ogle, the president of the 

Frye! 6 " court- martial, and obtained a verdict in his fa\our for 1,000^. 

damages. The Chief Justice Willes, moreover, informed him that 

he was at liberty to bring his action against any of the other 

members of the court-martial (d). Accordingly Lieutenant Fry 

obtained writs against Bear-Admiral Mayne and Captain Renton 

which were served on them at the breaking up of another court- 

(a) Crepps v. Burden, 1 Smith Lead. Ca., llth edn., 651. 

(b) Frye v. Ogle McArthur on Courts-martial, 4th edn., i. p. 268 ; Comyn v. 
Sabine, cited in 1 Smith Lead. Ca., llth edn., 600. 

(<) McArthur on Courts-martial, 4th edn., i. p. 268, and App. XXIV. 

(<0 This dictum of the Chief Justice cannot be considered law. From Srinsmcad 
\. Harrison, L. K. 7 C. P. 547, it seems to be conclusively settled that a judgment 
obtained in an action against one or two or more wrongdoers is a bar to an action 
against the others for the same cause, even though the judgment remains unsatisfied. 
The injured party can, however, sue all the wrongdoers together in the first instance; 
and if he only sues one, the court has power to make the others parties to the 
action. 



Actions for Damages. 129 

martial held on Vice-Admiral Lestock at Deptford at which they Oh. VIII. 

were members. 

43. The members of this court highly resented this proceeding, Sequel of 
and drew up resolutions, in which they expressed themselves with thls cat 
some acrimony against the Chief Justice, and forwarded them to 
the Lords of the Admiralty. In these resolutions they demanded 
"satisfaction for the high insult on their president, from all 
" persons how high soever in office, who have set on foot this 
" arrest, or in any degree advised or promoted it." The Lords of 
the Admiralty laid the resolutions before His Majesty ; and the 
Duke of Newcastle, by His Majesty's command, wrote to the Lords 
of the Admiralty, expressing " His Majesty's great displeasure at 
" the insult offered to the court-martial, by which the military 
" discipline of the navy is so much affected ; and the King 
" highly disapproves of the conduct of Lieutenant Frye on the 



occasion." 



44. The Chief Justice, as soon as he heard of the resolutions o Vindication 
the court-martial, caused each individual member to be taken into j^sy^^ 161 
custody, and was proceeding further to assert and maintain the hisautbo- 
authority of his office, when the following submission (signed by rit y- 

the president and all the members of the court-martial on Vice- 
Admiral Lestock) was transmitted to him : "As nothing is more 
becoming a gentleman than to acknowledge himself to "be in the 
wrong, so soon as he is sensible he is so, and to make satisfaction to 
any person he has injured : we therefore whose names are under- 
written, being thoroughly convinced that we were entirely mis- 
taken in the opinion we had conceived of Mr. Chief Justice Willes, 
think ourselves obliged in honour, as well as justice, to make him 
satisfaction as far as is in our power. And as the injury we did 
him was of a public nature, we do in this public manner, declare 
that we are now satisfied the reflections cast upon him in our reso- 
lutions of the 16th and 21st of May last were unjust, unwarrant- 
able, and without any foundation whatsoever : and we do ask pardon 
of his Lordship and of the Court of Common Pleas, for the indignity 
offered both to him and the Court." This paper was dated the 
10th November, 1746, and on its reception in the Court of Common 
Pleas was read aloud and ordered to be registered "as a memorial," 
said the Chief Justice, " to the present anil future ages, that whoso- 
ever set themselves up in opposition to the law or think themselves 
above the law, will in the end find themselves mistaken." 

45. It was observed with respect to this case by Lawrence, ohserva- 
J., in Warden v. Bailey (a), that Lieutenant Frye did not appear tions of 

to have been legally imprisoned at first, because the matter Lawreuc . J - 
charged against him did not amount to any offence. 

46. In 1804, Colonel More brought an action against Colonel illegal lm- 
Bastard, the president of a court-martial, for having ordered P risonln | nt 
his imprisonment on the charge of having suborned a witness before O f court- " 
the court. Colonel More was also a witness. He obtained a verdict martial, 
with 300^. damages, Lord Mansfield remarking that a court-martial 

has no power of imprisoning a witness except for impropriety of 
conduct (6). 

47. In the case of Warden v. Bailey (c) it was decided that an illegal com 

mand by 

(a) 4 Taunt.; 76. superior 

(>j> More v. Bastard, cited in Warden v. Bailey. 4 Taunt., 70. In an action officer. 
Drought at Calcutta in 18-,!, a reporter recovered nominal damages against the 
president of a court-martial for having ordered the forfible seizure of his notes, 
which he had persisted in taking after beinj; ordered to desist, kickettsv. Walker, 
Hough, Mil. Precedents, 718. 
(c) 4 Taunt., 67. 



ISO 



POWERS of dotml-s os- LAW, Efc. 



ck. viii. 

Warden v. 
Bailey, 1810. 



Non-suit set 
aside, and 
new trial 
granted. 



Opinion of 
tlie Ex- 
chequer 
Chamber in 
Dawkins v. 
Rokeby. 



Illegal 
execution of 
sentence. 



Excessive 
corporal 
punish- 
ment. 



action lies for imprisoning a man for disobedience to an order giveil 
without jurisdiction by his military superior. 

48. Warden was a permanent serjeant of the Bedford militia, 
and, in common with the other (non-commissioned officers of the 
regiment, was ordered by the colonel to attend an evening school, 
and to pay 8/7. a week towards the expenses of the school. Having 
neglected to obey this order, Warden was reprimanded for his 
CO' duct, and was afterwards, by direction of the adjutant, arrested 
and imprisoned iii Bedford gaol, and subsequently tried by court- 
martial for mutinous words spoken on parade, and for thereby 
exciting others to disobedience, but was acquitted, and liberated in 
March, 1810. On this he brought his action against the adjutant, 
but was non-suited by Grose, J., on the ground that after the 
decision in Sutton v. Johnstone (a) he could not try the question 
of the propriety of the arrest. 

49. This non-suit was set aside by the Court of Common Pleas, and 
a new trial granted, the court thinking that the order to attend 
school was most probably bad in law, and the order for payment of 
money certainly so. The case is most material as an instance of a 
court of law considering whether an order given by military 
authority is or is not within the scope of that authority ; and as 
discountenancing the duty of absolute obedience in a soldier 
enunciated in Sutton v. Johnstone (b). 

50. In the recent case, however, of Dawkins v. Rolceby (c), the 
unanimous opinion of ten judges, sitting in the Exchequer Chamber, 
is distinctly expressed, that cases involving questions of military 
discipline and military duty alone, are cognisable only by a military 
tribunal, and not by a court of law ; and Warden v. n<iily is 
distinguished, on the ground that the act there complained of 
was a wrongful and illegal act, without any colour of law. The 
distinction cannot be considered quite satisfactory, as, in order to 
decide that the act was illegal, the court must have gone more or 
less into questions of military discipline and duty. 

51. Where the sentence was legal, but the prisoner has been 
imprisoned in a place to which he was not legally committed, the 
keeper of the prison and the person who issued the warrant will 
both be liable ; and any officer commanding will also be liable in 
respect of the issue of the warrant by a subordinate officer for 
whom he is responsible (d) ; notwithstanding the ordinary rule, 
that where the superior did not appoint the subordinate officer, 
he is not responsible for the acts of that officer. 

52. In several cases heavy damages have been recovered in respect 
of the unauthorized infliction of corporal punishment. Thus a sea- 
man recovered damages in an action against Captain Tonyn, R.N., 



(a) See below, para. 67. 

(b) See in particular the argument on the part of the defendant, which 
enunciated the doctrine of absolute obedience, and was virtually overruled by the 
couit. The court, however, expressed a strong wish that the case should not be 
tried again, saying that "disputes res) eoting the extent of military discipline are 
" greatly to be deprecated, especially in time of war; they are ot the worst conse- 
" quences, and such as no good subject ill wish to see discussed in a civil action : 
" they ought only to be the sub ect of arrangement between military men." The 
result of the new trial was that the p'aintiff obtained a verdict, but this verdict was 
afterwards set aside by the Court of Error, and judgment entered for the defendant 
on the ground that Warden was in fad imprisoned for the use ot mutinous 
language, and that there was probable cause for the imprisonment which 
justified the defendant. Bailey v. Warden, 4 M. &. S. 400. As to probable cause, 
see Sutton v. Johnstone, below, para. 67. 

(c) L. K., 8 Q. B., 2.=>5; aft'. L. K., 7 H. L., 744. 

(d) See the case of Lieut. Allen above (para. 35), who subsequently recovered 501. 
damages against the Governor of the military prison at Weedon. Allen v. , 
Boyle "Times," March 4, 1861 ; but as to the present law, see paragraph 37. 



Actions for Damages. l3l 

for the infliction of several dozen lashes without a court-martial ; Ch. VIII. 
the custom of the navy only permitting a commanding officer 
to inflict summarily one dozen lashes (a). 

A similar action was brought against Colonel Bailey, of the 
Middlesex Militia, for improperly Hogging a private, and 600?. 
damages were awarded. And in an action tried in 1793 at the 
Devon Assizes against the officers of the Devon Militia for 
inflicting 1,000 lashes on the plaintiff, who had been found guilty 
of a charge of mutiny, though the only act proved against him was 
that he had written t o the colonel a letter telling him that the 
men were discontented, which was not communicated to anyone 
else, the plaintiff recovered 500/. or 600^. damages (6). 

63. Officers who are instrumental in dealing with a person 
not subject to military law as if he were so subject, clearly are liable martial of 
to make reparation to the person aggrieved. This was illustrated as civilian, 
early as 1738 by the case of Comyn v. Sabine (c). 

Corny n was a master carpenter of the office of ordnance at 
Gibraltar, and brought an action against the Governor-General 
Sabine for having confirmed the sentence of a court-martial which 
awarded him the punishment of 50(> lashes. It was shown 
that the carpenters of the office of ordnance were not subject to 
military law, and the jury found the Governor to be liable, as 
having had a share in the sentence, and gave 500. damages. Lord 
Mansfield, citing the case in Mostt/n v. Fabrigas (d), said, " The 
" Governor was very ably defended, but nobody thought the action 
" would not lie." 

54. The following cases are further instancesof eiviliansrecovering Fu-ther 
damages from officers in respect of a mistaken and unjustifiable 
exercise of their military authority. civilians. 

In Gli/nn v. Hovston (e) Mr. Gl}-nn, a British merchant residing 
at Gibraltar, recovered 501. damages from General Sir William 
Houston, the acting Governor, for having caused Mr. Glynn's 
premises to be surrounded with a detachment of troops, while a 
house immediately adjoining was searched for the person of Torrijos, 
a Spanish general ; and for having during the search (which was 
unsuccessful) prevented Mr. Glynn from leaving his house by 
placing a sentinel with fixed bayonet at the door. 

In (joodes v. Lieutenant-Colonel \Vhcath/(f\ the plaintiff was doing 
duty as constable at St. .Tames' s Palace, and had occasion to desire 
Lieutenant-Colonel Wheatiy, of the Guards, who was not in 
uniform, to walk on, whereupon Colonel Wheatiy marched Goodes 
off to the guard-room by a file of grenadiers, and confined him 
there several hours. The plaintiff was non-suited, but, it would 
appear, solely in consequence of a failure in the proof of his 
appointment as a constable for St. James's parish. 

In the case where the captain of an East Indiaman, on two 
strange sails (supposed to be enemies) being descried, mustered 
all hands and passengers, and assigned them stations for the defence 
of the ship, and the plaintiff', one of the passengers, refused to go "to 
his station, and was thereupon, by order of the captain, carried 
there and kept in irons all night, it was held by Lord Ellenborough 
that though the captain might have been justified in confining 

(n) Prendergast, Law relating to Officers of the Navy, 2nd edn., p. 185. Cited in 
ll'm/p/i v. Hiii'e-i, 4 Taunt., 71. 

(6) Cited in Warden v. Hai'ei/. 4 Taunt., 70. . 

(t) Cited in Mnsti/n v. Fabrigas, 1 Smith Lead Ca., llth edn., 600. 
(rf) 1 Smith Lead Ca., llth edn., 608. 
ft) 2 Man & dr., Ml. 
(/) 1 Campbell, 231. 

(M.L.) I 2 



132 



POWERS OF COURTS OF LAW, ETC. 



Cb. VIII 



Sana fide* 
does not 
excuse an 
illegal act. 



Immaterial 
that cause 
of action 
arose 
abroad. 

Alostyn v. 
Fabrigat, 
1774. 



Members of 
courts- 
martial not 
liable for 
mere errors 
of judg- 
ment. 



Abuse of 
military 
authority. 



the plaintiff for his refusal to obey orders, yet he had exceeded 
his authority in keeping the plaintiff in irons all night, and the jury 
gave 801. damages (a). 

55. Where an act complained of is itself unlawful, bona fides or 
honesty of purpose is no excuse, as appears from two cases cited 
by Lord Mansfield in Mostyn v. Fabrigas (6). Captain Gambier, 
by order of Admiral Boscawen, pulled down the houses of some 
sutlers on the coast of Nova Scotia, who supplied the sailors 
frequenting them with spirituous liquors, whereby their health 
was injured. One of the sutlers came over to England, and brought 
an action against Captain Gambier, in which he recovered 1,000?. 
damages. The second case cited by Lord Mansfield, in which 
Admiral Palliser was sued for destroying some fishing huts 
erected by Canadians on the Labrador coast, went off upon a 
reference ; but it does not seem to have been questioned that the 
action lay. 

56. The right to bring an action in the courts of this country 
in a case where the cause of action arose abroad does not seem to 
have been conclusively established till the decision in 1774 of 
Mostyn v. Fabrigas (c). 

57. Fabrigas, a native of Minorca, brought an action against 
General Mostyn, Governor of that island, for having, Avithout 
trial, imprisoned and banished him from the island, and recovered 
3,000^. damages. On a bill of exceptions, the point that, where the 
cause of action arises abroad, the courts of this country have no 
jurisdiction, was elaborately argued ; but Lord Mansfield, deliver- 
ing the judgment of the court, emphatically laid down that actions 
of this description may be brought in England, though the matter 
arises in foreign parts. lie also, with no less emphasis, repudiated 
the argument addressed to him, that the defendant was entitled 
to protection from an action by reason of his character as 
Governor. 

58. For mere errors of judgment, members of a court-martial 
cannot be made responsible any more than civil judges and 
magistrates. " Even inferior justices and those not of record," 
says Lord Tenterden, in Garnett v. Ferrand (d) " cannot be called 
in question for an error of judgment so long as they act within 
the bounds of their jurisdiction. In the imperfection of human 
nature it is better even that an individual should occasionally 
suffer a wrong than that the general course of justice should be 
impeded and fettered by constant and perpetual restraints and 
apprehensions on the part of those who are to administer it. Cor- 
ruption is quite another matter, so also are neglect of duty and 
misconduct in it. For these, I trust, there is, and always will be, 
some due course of punishment by public prosecution.'' 

59. Notwithstanding the reluctance of the courts of law to 
interfere with the exercise of military authority over those 
subjected to military law, and though (speaking generally) all 
acts done in the course of military duty are justified yet if military 
authority is exercised with excessive severity, oppression, or 
cruelty, so that the exercise, in fact, amounts to an abuse of 



(a) Boyce v. TSaylifff, 1 Campbell, 58. 

(b) 1 Smith Lead. Ca., llth edn., pp. 613, 614. 

(c) 1 Smith Lead. Ca., llth edn., p. 591. For historical sketch of the law relating 
to venue, formerly of much greater importance than at present, see id. p. 615, and 
seq. See also British South Africa Company v. Companhia de Mozambique, L. H. 
(1893), A. C. 602. 

(d) 6 Barn, and C. 9 Do\vl. and R. 657. See also Scott v. Mansfield, L. R. ( 3 Ex, 
20, where the law is laid down iu similar terms. 



Actions for Damages. 133 

jurisdiction, then the justification is destroyed, and the person Ch. VIII. 
injured may recover damages (a). 

60. Thus, in Wall v. Macnamara (b), the plaintiff, a captain '^" v " 
in the African Corps, brought an action against the Lieutenant- namara. 
Governor of Senegambia for imprisoning him for nine months at 
Gambia, in Africa. The defence was a justification of the imprison- 
ment under the Mutiny Act, for disobedience of orders. At the 

trial it appeared that the imprisonment of Captain Wall, which 
was at first legal namely, for leaving his post without leave from 
his commanding officer, though in a bad state of health had 
been aggravated with many circumstances of cruelty. Lord 
Mansfield, in summing up, said, " In trying the legality of acts 
done by military officers in the execution of their duty, particularly 
beyond the seas, where cases may occur without the possibility o'f 
application for proper advice, great latitude ought to be allowed, 
and they ought not to suffer for a slip of form, if their intention 
appears by the evidence to have been upright ..... Thus 
the principal inquiry to be made by a court of justice is, how th<i 
heart stood ? and if there appears to be nothing wrong there great 
latitude will oe allowed for misapprehension or mistake. But, on 
the other hand, if the heart is wrong, if cruelty, malice, and 
oppression appear to have occasioned or aggravated the imprison- 
ment or other injury complained of, they shall not cover themselves 
witli the thin veil of legal forms, nor escape under cover of a justi- 
fication, the most technically regular, from that punishment which 
it is your province and your duty to inflict on so scandalous an 
abuse of public trust. It is admitted that the plaintiff was to 
blame in leaving his post, but there was no enemy, no mutiny, 
no danger, his health was declining, and he trusted to the 
benevolence of the defendant to consider the circumstances under 
which he acted. But supposing it to have been the defendant's duty 
to call him to a military account for his misconduct, what apology 
is there for denying him the use of the common air, in a sultry 
climate, and shutting him up in a gloomy prison, where there was 
no possibility of bringing him to trial for several months, there not 
being a sufficient number of officers to form a court-martial ? These 
circumstances, independent of the direct evidence of malice, as 
sworn to by one of the witnesses, are sufficient for you to presume 
a bad, malignant motive in the defendant, which would destroy 
his justification, had it even been within the powers delegated 
to the defendant by the commission." The jury found a verdict 
for Captain Wall, with 1,000^. damages (c). 

61. If an officer is exercising a legal jurisdiction possessed 
by him, he can, as a rule, only render himself liable to an action 



xss, 
by exercising it with such circumstances of undue severity and action only 

oppression as to justify a jury in inferring malice. There are, ^{ can 
however, _ one or two cases from which it would appear that even b" 
where injustice or oppression is the result of mere carelessness, 



(a) See the judgment of the Court of Exchequer delivered by Baron Eyre In 
Stttton v. Johnstone, 1 T. K. at p. 504 : "And one may observe in general in respect of 
what is done under powers incident to situations, that there is a wide difference 
between indulging to situation a latitude touching the extent of power, and touching 
the abuse of it. Cases may be put of situations so critical that the power ought, to 
be unbounded ; but it is impossible to state a case where it is necessary that it 
should be abused, and it is the felicity of those who live under a free constitution 
of government that it is equally impossible to state a case inhere it can be abused u-itfi. 
impunity." 

(b) Cited in Sutton v. Johnstone, 1 T. R. 536. 

(c) As to criminal liability for abuse of authority, see below, para. 91, ft seq. 



134 



POWERS OF COURTS OF LAW, ETC. 



Oh. VIII 



Swinton v. 
Afolloy. 



Custom of 
the service 
may be a 
justifica- 
tion. 



Grant v. 
Shard. 



Civilians 

protected 

against 

abuse of 

military 

authority. 



Acts com- 
plained of as 
clone mali- 
ciously and 
without 



and not of any bad intention, the officer guilty of such conduct 
may be held liable. 

62. Captain Molloy, of Her Majesty's ship Trident, kept the 
purser Swinton in confinement for three days without inquiring 
into the case, and then, on hearing his defence, released him. The 
purser brought an action against Captain Alolloy, and on the 
evidence Lord Mansfield said that such conduct on the part of 
the captain did not appear to have been a proper discharge of his 
duty, and, therefore, that his justification under the discipline of 
the Navy had failed him. It does not appear from the citation of 
this case in the Term Reports what the verdict in this case was (a). 

63. On the other hand, the custom of the service, if not incon- 
sistent with the law of the land, may be a justification of an act 
done in pursuance of such custom. For example, in an action by a 
midshipman against his first lieutenant for having caused him, on 
his refusal to go to the masthead, to be hoisted thither by a party 
of seamen, mast heading was proved to be a customary punishment 
of the service, and the Chief Justice ruled' that it was a 
justification (6). 

64. In Urant \. Shard (c) violent language and striking a 
subordinate otticer on duty were held actionable. Grant was 
directed to give a military order, and it appeared that he sent 
two persons, who failed. Shard thereupon said to Grant, " What 
a stupid person you are," and twice struck him. Although the 
circumstances occurred in the actual execution of military service, 
it was held that the action was maintainable, and a verdict was 
found for the plaintiff, with ~b'l. damages. An application was 
afterwards made to the Court of King's Bench to set aside the 
verdict, but the court, after argument, refused to disturb it, though 
Lord Mansfield was desirous to grant a new trial. The above 
cases of Swinton v. Molloif and Grant v. Shard are no doubt strong 
ones, and it would probably be now held in similar circumstances 
that the aggrieved person could only seek redress at the hands of 
the military authorities. 

65. civilians will always be protected by courts of law against 
the arbitrary and oppressive exercise of military jurisdiction (d). 

Thus, Sutherland v. Murray (e) was an action brought in 1783 
by Mr. Sutherland, a judge in Minorca, against General Murray 
for improperly suspending him from his office. The General had 
professed himself ready to restore the judge on his making a 

Erticular apology ; and on reference to the home authorities the 
ing approved of the suspension unless the Governor's terms 
were complied with. It was admitted that General Murray had 
power to suspend the judge for proper cause ; yet on the proof of 
his having unreasonably and improperly exercised that authority, 
and notwithstanding the King's approbation of his proceedings, 
damages to the amount of 5,UOCM. were awarded against him by the 

jury- 

66. The class of cases last referred to occupy a sort of inter- 
mediate position between cases where the act complained of is 

(a) Swinton v. Molloy, cited in SuUon v. Johnstone, 1 T.R. 537. Prendergast, Law 
Relating to Officers of the Navy, Part II, 374, cites another very similar case which 
occurred in 1823. 

(b) Prendergas-t, Part II, 377. 

(c) Cited in Warden v. Bailey, 4 Taunt., at p. 85. 

(d) See paras. 53-55 above. 

(e) Cited in Mutton v. Johnstone, 1 T. R., 538. The facts of this case 
are not very fully or clearly given in 1 T. R. ; and it may be questioned whether 
Jt .does not more properly belong to the class of cases next referred to, 



Actions ior Damages. 

done without jurisdiction, and the cases where an act, in itself a legal Oh. VIII. 

exercise of military authority towards a person subject to military 

law, is charged as done maliciously and without probable cause. cause* 1 ' 

67. In this latter class of cases no action can be maintained, guttm v 
unless the plaintiff avers and proves that the act complained of Johnstone, 
was done without probable cause (a). This proposition was laid 1786- 
down by Lords Mansfield and Loughborough in 1786 in the great 

case of Button v. Johnstone (Johnsione v. Sutton, in error) (6), and 
has never since been disputed. 

The circumstances of Outrun v. Johnstone were as follows : The 
plaintiff' Sutton was captain of "His Majesty's ship Isis, which 
formed part of a squadron under the command of the defendant 
Johnstone. On the 16th April, 1781, there being war between the 
Unued Slates and the French on the one hand, and the English on 
the other, the defendant Johnstone ordered the ships under his 
command to pursue the French fleet, and signalled to Button to slip 
his cable in order to engage the enemy. Sutton having failed to 
slip his cable, the defendant Johnstone caused him to be brought 
to a court-martial on the ground of his having "delayed and 
discouraged the public service on which he was ordered," and for 
disobedience of orders in not slipping his cable and putting to sea. 
Sutton admitted on the trial by court-martial that he had disobeyed 
the orders, but averred that he did not wilfully and willingly 
disobey them by reason that he was physically incapable of obeying 
them. The court-martial found that, Sutton was justified in not 
immediately slipping Ms cable owing to the state in which his ship 
was, and that he did not delay the public service, and adjudged him 
to be honourably acquitted. Upon this, Sutton brought an action 
against Johnstone for having maliciously and without probable 
cause charged him w T ith the crime of disobedience of orders and 
the delay of ( he public service. 

68. Practically, two important questions were raised in the case. Questions 
First, whether an action for malicious prosecution would lie by a [^case 
subordinate officer against his superior officer for an act done in the 
course of discipline and u-nder powers incident to his situation ; 
secondly, whether, supposing such an action would lie, Johnstone 

had or had not probable cause for charging the plaintiff with 
disobedience to his orders, and delaying the public service, and 
therefore for bringing him to a court-martial. 

69. The case was twice tried before the Chief Baron at Guildhall, Result of 
and die .plaintiff Sutton recovered 5,0001. damages on the first trials, and 
trial and t>,CK0. on the second. A motion was then made in the cmirtof f 
Court of Exchequer in arrest of judgment, and upon this two points Exchequer, 
were raised : first, whether the action would lie ; secondly, whether 

if it did lie, the plaintiff was entitled in law to keep the verdict. 
The Court of Exchequer decided that the action would lie, on the 
ground apparently (p. 504) that "all men hold their situations in 
this country upon the terms of submitting to have their conduct 
examined and measured by that standard which the law has 
established." 

The court further decided that the plaintiff was entitled in law to 
hold his verdict on the grounds (p. 507), that, admitting for the 
sake of argument, that probable cause appeared for the charge of 
disobedience, yet no probable cause appeared for the charge of 
delaying the public service, of which the plaintiff had been acquitted 

(a) This expression is used in the judgments in Sutton v. Johnstone, and through- 
out this chapter, as equivalent to " reasonable and probab " 
(6) 1 T. R.-493; 7S4; 1 Bra, P, C. 78, 



136 



POWERS OF COURTS OF LAW, ETC. 



VIII. 



Heversal of 
decision of 
Court of 
Exchequer 
hy Ex- 
chequer 
Chamber. 



by the court-martial, and that this was enough to support the 
verdict. The court observed : 

"The plaintiff charges the defendant with having maliciously 
and without probable cause brought the plaintiff to a court-martial 
upon one charge " (that of delaying the public service), " for which 
there was not a probable cause, and upon another charge" (that of 
disobedience of orders), " for which there was probable cause. The 
declaration is therefore felo de se with respect to the latter, but 
good as to the former. In that case, after a verdict, the jury 
must be taken to have given damages for that part of the case only 
which is actionable." The rule therefore for arresting the judg- 
ment was discharged. 

70. Shortly afterwards Johnstone brought a writ of error in 
the Exchequer Chamber, and the judgment of the Court below was 
reversed. Taking the second point first, whether there was or was 
not probable cause for bringing Sutton to a court-martial, the 
court, Lords Mansfield and Loughborough, stated (p. 547) : 

"Under all these circumstances, it being clear that the orders 
were given, heard, and understood, that in fact they were not 
obeyed, that by not being obeyed the enemy were enabled the 
better to sail off, that the defence was an impossibility to obey 
(a most complicated point) under all these circumstances we have 
no difficulty to give our opinion that in law the commodore 
(Johnstone) had a probable cause to bring the plaintiff (Sutton) 
to a fair and impartial trial " (a). The court further declared 
that " nothing less than a physical impossibility to obey could 
be a justification. A subordinate officer must not judge of the 
danger, propriety, expediency, or consequence, of the order he 
receives ; he must obey. Nothing can excuse him but a physical 
impossibility. A forlorn hope is devoted, many gallant officers 
have been devoted, fleets have been saved and victories obtained, 
by ordering particular ships upon desperate services, with almost 
a certainty of death or capture " (p. 546). 

On the first point whether the action would lie, the court 
observed (p. 550) that it was not necessary to give judgment, 
because, supposing the action did lie, the court thought judgment 
ought to be given for the defendant. The court, however, was 
inclined to lean against the action lying, on the ground that a 
Commander-in-Chief has a discretionary power by the sea military 
code to put any man in the fleet upon his trial, that a court-martial 
alone can judge of the charge, that if the power of the Commander- 
in-Chief was abused, such an abuse was provided against by the 
33rd A icicle of War, and that a commander who arrested, sus- 
pended, or pxit a man on his trial without probable cause might 
be tried by court-martial and punished accordingly. 

The court said (p. 549) : " Commanders in a day of battle must 
act upon delicate suspicions, upon the evidence of their own eye ; 
they must give desperate commands ; they must require instant- 
aneous obedience. In case of a general misbehaviour they may 
be forced to suspend several officers and put others in their places. 
A military tribunal is capable of feeling all these circumstances, 
and understanding that the first, second, and third part of a 
soldier is obedience. But what condition will a commander be in 
if upon the exercising of his authority he is liable to be tried by a 
common law judicature ? If this action is admitted, every acquittal 
before a court-martial will produce one. Not knowing the law, or 

(a) It is settled that what constitutes probable cause is a question to be determined 
by the judge on the facts found by the jury. Lister v. ferryman, L.R. 4 H.L, 521. 



Actions for Damages. 137 

the rules of evidence, no commander or superior officer will dare Ch. VIII. 
to act ; their inferiors will insult and threaten them. The relaxation 
and decay of discipline in the fleet has been severely felt. Upon an 
unsuccessful battle there are mutual recriminations, mutual 
charges, and mutual trials ; the whole fleet take sides with great 
animosity, party prejudices mix. If every trial is to be followed by 
an action, it is easy to see how endless the confusion, how infinite 
the mischief will be. The person unjustly accused is not without 
his remedy : he has the properest amongst military men ; repara- 
tion is done to him by an acquittal, and he who accused him 
unjustly is blasted for ever and dismissed the service." 

The judgment of the Court of Exchequer Chamber was confirmed 
by the House of Lords (a). 

71. The decision in Sutton v. Johnstone (6), proceeded solely on Probably no 
the ground that in that particular case there was probable cause foV'an act* 
for bringing Sntton to a court-martial, and the question raised, but within 
not decided in that case, viz., whether an action by a person subject m ]^ry 
to military law would lie against an officer for an act within the authority 
limits of his authority, but done maliciously and without probable even "here 
cause, long remained one on which judicial opinion was divided. ou " s \y and 
Lords Loughborough and Mansfield, in button v. Johnstone, plainly without 
inclined to the view that such an action would not lie (<), and this 
view was explicitly affirmed by Mellor, Lush, and Hayes, J.J. in 
Daickins v. Paulet (d) ; while Cockburn, C.J., as explicitly 
rejected it. Having regard, however, to the recent case of Marks 
v. Frogley (e), the correct view seems to be (though the point would 
still be open to argument in the House of Lords) that such an action 
would not lie, and that as between persons both subject to military 
law the mode of redress given by the Army Act is the only mode of 
redress, and that the Civil Courts cannot be invoked for the purpose. 

The mode of redress in these cases is that prescribed by ss. 42 
and 43 of the Army Act, which extend the provisions of the former 
Articles of War, 12 and 13, in favour of the soldier. 

75. For statements made by an officer in the discharge of his Actions for 
military duty, even though the statements are made maliciously and 
with the knowledge that they are false, it has in one case been 
held that an action for libel will not lie (/). 

(a) \ Bro. Parl. Ca., 7tf. Jjartcis v. Ktpptl, V Wils., 314, decided in 17ti(i, as far as it 
goes supports the decision. Burn-is, a discharged sergeant of the Guards, obtained 
a verdict with 7<>/. damages against Major Keppel, as acting commander of the 
regiment, for maliciously and without any reasonable (probable) cause reducing 
the plnirtiff to the rank of a private for neglect of duty during the campaign of 
the King's forces in Germany under Prince Ferdinand in 1761. But on a case 
reserved for their opinion, the court said : "By the Act of Parliament t" punish 
mutiny and desertion the King's power to make Articles of War is confined to 
his own dominions ; when his aimy is out of his dominions, he acts by virtue of his 
prerogative and without the statute or At tides of War ; and therefore you cannot 
argue upon either of them, for they are both to b !a'd out of this case. Kn&flagrante 
lello, the common law has never interfered with the army ; inter armti silent leyef. 
We think fas at present advised) we have no jurisdiction at all in this case; but if 
the plaintiff's counsel think proper to speak mure fully in this matter, we are wil- 
ling to hear him." 

"But," the reporter adds, " plaintiff, seeing the opinion of the court against him, 
acquiesced, and the judgment was for the defendant, ut audivi." 

(b) 1 T. R. 49.3, 784. 

(c) But see Warden v. Bailey, 4 Taunt., at p. 89. 

!(d)Tj. R. 5 Q. B. 94; and see also Keightey v. ndl, 4 F. & F. 763, and Dawklns v. 
Lord Rokebi/, L. R. 8 Q.B. at p. 211. 
(e) [1898] 1 Q.B. 88a, at pp. i-99, 900. 

(/) Daic/iins v. Pnulet, L.R. 5 Q. B. 94 ; and see the other eases cited below. In 
Mitchell v. Kerr, Rowe's Rep. 537, decided by the Court of King's Bench in Ireland 
in 1801, the defendant had written two libellous letters to the commanding 
officer of a reeiment which the plaintiff was about to enter. At the trial the jury 
were directed that, if they thought the letters were written merely for the purpose 
of bringing the plaintiff to a court-martial, the action would not lie, and they found 
a verdk-t for the defendant, which the Court of King's Bench refused to disturb. 



138 



JOWERS OF COURTS OF LAW, ETC. 



Dan-kins v. 
Paulet. 



Jekyll v. 
Moore. 



Report of 
court of 
inquiry 
privileged. 



. VIII. The above-mentioned case of DawMns v. Paulet was an action of 
this description brought by Lieutenant-Colonel Dawkins against 
Major-General Lord F. Paulet in respect of certain statements and 
reports regarding the military conduct and qualifications of the 
plaintiff, forwarded by the defendant, in the ordinary course of 
military duty, to the Adjutant-General for the information of the 
Commander-in-chief ; and it was decided that, even assuming the 
truth of the allegations of the plaintiff, viz., that the statements 
(admittedly made in the course of military duty) were made 
maliciously and with the knowledge that they were false, the action 
would not lie. 

76. In Jekyll v. Moore (a) the plaintiff brought an action for libel 
against Sir John Moore, who had been the president of a court- 
martial held for the trial of Colonel Stewart of the 43rd Regiment. 
The court "most fully and honourably" acquitted Colonel Stewart, 
and appended to this finding the following remarks : " The 
court cannot pass without observation the malicious and groundless 
accusations that have been produced by Captain Jekyll against an 
officer whose character has, during a long period of service, been 
so irreproachable as Colonel Stewart's, and the court do unani- 
mously declare that the conduct of Captain Jekyll in endeavouring 
falsely to calumniate the character of his commanding officer is moat 
highly injurious to the good of the service." The Court of Common 
Pleas decided that no such action could be maintained, the Chief 
Justice, Sir James Mansfield, observing, "If it appear that the 
charges are absolutely without foundation, is the president of the 
court-martial to remain perfectly silent on the conduct of the 
prosecutor, or can it be any offence for him to state that the charge 
is groundless and malicious ? It seems to me the words complained 
of in the case form part of the judgment of acquittal, and con- 
sequently no action can be maintained upon it." 

.Kroni this decision it would appear that comments by a court- 
martial censuring the conduct of a person in respect of a matter 
not before them would not be held privileged so as to exempt the 
members from an action (/>). 

77. The report made by a court of inquiry is absolutely privi- 
leged. In Home v. tientinck, the plaintiff brought an action against 
the president of a court of inquiry for libel in publishing the 
contents of the report of the court, by communicating it to the 
Commander- in-Chief. The report contained these words: "The 
conduct of Lieutenant-Colonel Home does not appear to have been 
actuated by those high and delicate feelings of honour which in 
all transactions of life ought to influence an officer of high rank 
and reputation." The Court of Common Pleas were unanimously 
of opinion that the report was a privileged communication for 
which the officer making it could not be rendered responsible in a 
court of law ; and that the officer who had been summoned to 
produce at the trial of the action the report in question and the 
proceedings of the court of inquiry was not bound nor even at 
liberty to disclose the documents in question, they being State 
documents and protected as such from exposure in courts of 
justice. This decision was confirmed on appeal to the Exchequer 
Chamber (c). 

78. In this class of cases the question always is whether the 
libel, if it be a libel, is, to use the technical term, privileged. This 

(a) 2 New Reports, 341. 

(b) See Piendergast, Law Relating to Officers of the Navy, Part II, 405. 

(c) 2 Broderip and Binghim, 13u ; 4 Moo? e ; 563. See rule 124 (L). I 



Question to 
be deter- 
mined in 



Actiont for Damages. 139 

question is very similar to that discussed above as regards want Ch. VIII. 

of jurisdiction. If the communication charged as libel was made 

by a court in the exercise of its jurisdiction, or by an advocate or that^f" 

witness before such a court, it is considered absolutely privileged, privilege. 

and no one is liable in respect of it. If it is made otherwise than 

in the exercise of the proper jurisdiction, it has been held not to 

be so privileged, but this can scarcely be considered as settled. 

If it is made by a person not as a judge or witness but in the 

discharge of his military duty, it is according to the case of 

Dau-kins v. Pavlet (), absolutely privileged. In any other case, if 

the statement is made in furtherance or under colour of any 

interest or duty, it is only prim a fa<-ie privileged, and the privilege 

will be lost if actual malice or great excess is shown. 

79. In DickwH v. Wilton (b) Lord Campbell directed the jury Malice held 
that letters from the commanding officer of a regiment to his' 
immediate superior containing charges against the Colonel, and a 
conversation with a member of Parliament as to a question to be l^ckson 
put in the House of Commons relative to the dismissal of the 
Colonel on these charges, are primd fade privileged communica- 
tions ; but that if made from other motives than a sense of duty, 

which was a question for them to decide, the privilege would be 
gone. The jury found for the plaintiff with 205/. damages. This 
case, however, was never discussed on a motion for a new trial, 
and the Court of Exchequer Chamber observed, in D n-H^s v. 
Lord liokeby (<). that the judge who tried it was wrong in 
compelling the production of the documents by the Secretary for 
War, and in ruling that malice might be inferred by the jury from 
the documents themselves without other evidence. 

80. Again in Dickson v. Combermere (d), an action brought by the Dickson v. 
ame plaintiff as in Dickson v. Wilton, not for libel, but for con- ^^ 

spiring to obtain the removal of the plaintiff f re an his command 
by false charges, Chief Justice Cockburn told the jury that if the 
charges were in their opinion made without probable cause and 
maliciously, i.e., apparently not in the course of military duty, 
they must find for the plaintiff ; but in this case the verdict was 
for the defendant. 

81. Publishing the sentence of a court-martial to the effect that Publication 

Colonel is dismissed from the service for gross violation of [ court" " 

the trust reposed in him as commanding officer of the Molucca martial not 
Islands is not libellous (e). a libel - 

^ 82. Nor again is a proper complaint to a superior officer or to the Complaint 
Secretary of State, or other authority having power to redress to P r P. e r 
the matter complained of, a libel. This was decided by the not alibel! 
Court of King's Bench in Hex v. Buillie (/), where the defendant, 
a Captain in the navy and Deputy Governor of Greenwich Hospital, 
had written, and distributed among the Governors of the hos- 
pital, a large volume containing an account of the abuses of the 
institution, and severely animadverting on the characters of some 
of its officers, especially Lord Sandwich, First Lord of the 
Admiralty. A conditional order obtained by Lord Sandwich for a 
criminal information against Captain Baillie for libel was dis- 
charged by the court ; and Lord Mansfield said that this distribu- 

(a) L. R., 5 Q. B. 94. 

(b) 1 F. and F. 419. 

(c) L. R. 8 Q. B. 255 ; L. R. 7 K. L. 744. 
(i) 3 F. and F. 527. 

(e) Oliver v. Lord W. Betttinck, 3 Taunt. 438. 

(/) Holt on Libel, 112 ; 21 Howell's State Trials, at pp. 89, 70. 



140 



POWERS OF COURTS OF LAW, ETC. 



Ch. VIII. 



7?. v. Bay- 
ley. 

{'airman 
v. lees. 



Hnnrood v. 
Green. 



Privilege of 
witnesses. 



Actions for 
negligence. 



Weaver v. 
Ward. 



Case of 
H.M.S. 

Volcano. 



tion of the work to the persons only who were from their 
situations bound and competent to redress the grievances in 
question, was not a publication sufficient to make it a libel. 

83. In R. v. Eayley (a) and in Fairman v. Ives (b) letters had been 
written by the defendants to superior military authorities with 
the view of obtaining payment of debts due to them from the 
plaintiffs. In each case the circumstances of the alleged debt were 
stated, and fraud or concealment on the part of the plaintiff was 
alleged or suggested. It was held that the letters were not libels, 
being communications to the proper authorities having power to 
give redress of the alleged grieA 7 ance. 

84. On the other hand where a naval officer acting as govern- 
ment agent on board a transport wrote to Lloyd's imputing 
incapacity to the captain of the transport, it was held that the 
communication was not privileged, and the plaintiff recovered 50/. 
damages (c). The officer ought to have addressed his complaint 
to the Admiralty authorities. 

85. With regard to the privilege of witnesses, the decision of the 
Court of Exchequer Chamber in Dawkins v. Lord RoLi'by (d) 
having been affirmed by the House of Lords is a conclusive 
authority that a court of inquiry held under the Army Act is to 
this extent a court, that the statements made, whether orally or 
in writing by witnesses summoned to give evidence, are absolutely 
privileged, even though made with actual malice and without 
probable cause. It need scarcely be observed that evidence given 
before a court-martial is similarly privileged. 

86. Negligence or unskilfulness in the discharge of professional 
duty may be actionable at the suit of a person injured by 
such negligence or unskilfulness. And any one committing a 
wrongful act or an act that cannot be justified, cannot escape 
liability for the offence merely because he acted in obedience to tlae 
order of the executive Government or of any officer of state (e). 

87. Thus in the case of Weaver v. Ward (/), decided in 1616, the 
plaintiff and defendant were both soldiers of the London trained 
bands, and while engaged in skirmishing by way of military 
exercise, Ward's musket was discharged in such a way as to wound 
Weaver, who thereupon brought an action of trespass against Ward. 
Ward's defence was that he was in training by order of the Lords 
of the Council, and skirmishing in obedience to military com- 
mand, and that the injury happened casually, by misfortune and 
against his will. But this was decided not to be enough. The 
court said, " No man shall be excused a trespass except it may be 
judged utterly without his fault." 

88. In 1844 the commander of Her Majesty's ship Volcano 
was held liable in an action brought in the Court of Admiralty 
for damage occasioned by a collision between the Volcano and the 
brig Helen. Both vessels had sought shelter in the same bay off 
the coast of Spain, the Volcano taking up a berth near the Helen. 
During a storm at night the Volcano broke her anchor, came into 
collision with the Helen, and so damaged her that she sank. 



(a) Bac. Abr. "Libel," A. 2. 

(b) 5 Barn, and Aid. Ml'. 

(c) Hancood v. Green, 3 Car. and P. 141. 

(a) L. E. 8 Q. B. 255 ; 7 H. L. 744. It may be added that actions subsequently 
brought by Colonel Dawkins against certain members of the court of inquiry wet* 
stayed on 'the ground that they would not lie. Dan-kins v. Prince Edward of Safe- 
Weimar, L. R. 1 Q. B. D. 499. 

(e) Kaieiqh v. Goschen, L. R. [1898] 1 Ch. 77. 

(O Hobart's Reports, 134. 



Criminal Proceedings. 141 

The court was of opinion that the Volcano was to blame, both in Oh. VIII, 
taking up her original berth and also in not letting out more cable 
and in not dropping a second anchor ; and damages were accord- 
ingly recovered from the commander (a). 

89. British Courts of Justice are open to subjects of friendly Action hy 
nations, and it has been held that a Spaniard could recover fc 
damages for seizure and detention of a cargo of slaves by a captain 

in the navy (/>). 

90. A British subject is not liable to actions by foreigners 
in respect of hostile acts done by him in the name of the 
Government which he serves, provided those acts are either clone by- 
authorised by an actual command or ratified by a subsequent 0^4"^ f 
approval of the Government. To such acts the maxim respondeat ment. 
superior appears to apply ; and, if the Government refuses redress, 

there is no remedy but an appeal to arms (c). 

(v.) Liability to Criminal Proceedings. 

91. There are several authorities which show that where the LlaWlitv to 
death of a person is caused by some act of a military officer p 1 ^^ 
done without jurisdiction, the officer is criminally responsible. Ings. 
Thus on the case of an action against the officers of the Devon 
Militia above mentioned being cited in Warden v. Bailey, 

Mr. Justice Heath expressed his opinion that, if the plaintiff in 
that action had died under the punishment inflicted by order of the 
court-martial, all the members of the court would have been liable 
to be hanged for murder (d). 

92. In the well-known case of Governor Wall (plaintiff in the Case of 
action already noticed of Wall. v. Macnamara),the penalty of death ^T/''^, 2 
was actually inflicted on Governor Wall for a crime resembling in 

its nature and circumstances the conduct towards himself in respect 
of which he recovered damages. This crime was the nmrder of 
Serjeant Benjamin Armstrong, of the African Corps, in 1782, by 
inflicting on him 800 lashes with such cruelty as to cause his death. 

93. Governor Wall appears to have been arrested on the charge ciroum- 
shortly after his return to England, but to have absconded and kept stances of 
out of the way for nearly twenty years, as he was not tried till thls Ctl8e ' 
1802. The circumstances out of which the charge arose were as 
follows : In July, 1782, Mr. Wall was in command of the garrison 

at Goree. an island on the coast of Africa, and about to leave for 
home. The men of the garrison had some pecuniary compensation 
then due to them in respect of their having been put on a reduced 
allowance of provisions, and the paymaster responsible for meeting 
their demands was to leave together with Governor Wall. On the 
day before that fixed for their departure, a number of men, headed 
by Armstrong, twice proceeded to the house of the paymaster to 
obtain a settlement of their accounts. According to the evidence 
for the prosecution, there was no appearance of any mutiny, and no 
disrespectful or disorderly conduct on the part of the men, who 
returned to barracks when ordered to do so by Governor Wall. 
In the afternoon Governor Wall ordered a parade, and by his order 
800 lashes were inflicted on Armstrong by black men, not with the 
ordinary cat, but with a description of rope. It was stated that 

(a) " Volcano" 2 W. Robinson's Admiralty Rep. 337. 

(1) Marlra:o v. Willes, 3 Barn, and Aid. 353. Compare Forbes v. Cochrane, 2 
Earn, and Cr. 448, in which case the plaintiff was a British subject. 

(c) 1 Smith's Lead. Ca. llth edn., 64*, 649, and authorities there cited. Enron v. 
Denman, 2 Ex. 167 ; Feather v. Reg., 35 L. J. (N. S.), Q. B. 200, 4 B. and S. 257. 

(rf) 4 Taunt., at p. 77. 



148 



POWERS o? COURT'S OF LAW, 



Direction of 
the Chief 
Baron to the 
jury. 



Case of 
Ensign 
Maxivell, 
1807. 



Oh. VIII. Governor'Wall stood by urging the black men to increased severity 

with coarse expressions, such as "Lay on, you 'black , or I'll 

lay on you ; cut him to the heart." Armstrong died shortly after- 
wards in hospital. For the defence some evidence was given that 
the behaviour of the men, and in particular of Armstrong, had been 
mutinous and that a sort of drum-head court-martial had been held 
which ordered the punishment ; and that the death of Armstrong 
was accelerated by drinking spirits in hospital. 

94. Chief Baron Macdonald directed the jury that if there was 
no mutiny and no court-martial, and the punishment of 8oO lashes 
with such an unusual instrument was ordered by the prisoner, there 
was certainly ground to infer malice ; and pointed out that Governor 
Wall in his report of the state of the settlement on his return made 
no mention of the existence of any mutinous spirit in the garrison. 
The jury found the prisoner guilty, after deliberating for half an 
hour, and he was hanged at Tyburn (a). 

95. A. mistaken impression of duty will not excuse an officer, if 
he, without being justified by other circumstances, orders his men 
to fire, and some one is thereby killed, as is shown by the following 
case. In 1807, Ensign Maxwell, of the Lanarkshire Militia, was 
tried before the High Court of Justiciary in Scotland for the mur- 
der of Cottier, a French prisoner of war at Greenlaw, by improperly 
ordering a sentinel to fire into the room where Cottier and other 
prisoners were confined. Ensign Maxwell had the military charge 
of over 300 prisoners, confined in a building of no great strength. 
The prisoners were of a turbulent character, and to prevent their 
escape an order was given that all lights in the prison should be put 
cut at 9 o'clock, and that if this was not done at the second call 
the guard was to fire upon the prisoners, who were often warned of 
this order. Ensign Maxwell having observed one night, on wliich 
there had been some disorder among the prisoners, a light burning 
beyond, the appointed hour, twice ordered it to be put out, and, not 
being obeyed, directed the sentry to fire, but the musket merely 
snapped. Ensign Maxwell repeated the order, the sentry fired again, 
and Cottier received his mortal wound. At this time there was no 
symptom of disorder in the prison, and the prisoners were all in bed. 

96. The general instructions issued from the Adjutant-General's 
office for the conduct of the troops guarding the prison contained no 
such order as that upon which Ensign Maxwell had acted ; and it 
appeared to be a mere verbal one which had from time to time in 
hearing of the officers been repeated by the corporal to the sentries 
on mounting guard, and had never been countermanded by those 
officers, who were also senior to Ensign Maxwell. The Lord Justice 
Clerk laid it down that Ensign Maxwell could only defend himself 
by proving specific orders, wliich he was bound to obey without 
discretion, and which called upon him to do what he did ; and the 
jury found him guilty of the minor offence of culpable homicide, 
with a recommendation to mercy. He was sentenced to nine 
months' imprisonment (ft). 

97. Again in the case of R. v. Thomas (c) the prisoner, a sentinel 
on board Her Majesty's ship Achille, had been ordered to keep off 
all boats unless they had officers in uniform in them, or unless 
the officers on deck allowed them to approach ; and he received a 
musket, three blank cartridges, and three ball cartridges. The 
boats pressed, upon which he repeatedly ca'ilec! to them to keep oft ; 

(a) 28 Howell's State Trials, nl. 

(ft) Buchanan's "Remarkable Cases," Part II, 3. 

(6) Russall on Crimes, 6th edn., iii. 94, 4 M. & S. 442. 



Ruling of 
the Lord 
Justice 
Clerk as 
to orders 
given. 



E. v. 

Tftonifif. 



Criminal Proceedings. 143 

but one of them persisted and came close under the ship, and he Oh. VIII. 
then fired at a man in the boat and killed him. It was put to the 
jury to find whether the sentinel did not fire under the mistaken 
impression that it was his duty, and they found that he did. But 
the case being reserved for the opinion of the judges, their 
Lordships were unanimous that it was murder. They thought it, 
however, a proper case for a pardon ; and further, they were of 
opinion that if the act had been necessary for the preservation of 
the ship, as if the deceased had been stirring up a mutiny, the 
sentinel would have been justified. 

98. How far a subordinate could plead the specific commands of How far 

a superior officer such commands being not obviously improper command* 
or contrary to law as justifying an injury inflicted on a citizen, can excuse 
is somewhat doubtful ; though there are cases in which the fact of 
the orders having been given would no doubt prove the innocent 
intent of the subordinate, and lead practically to his acquittal on 
a criminal charge (a). 

99. With respect to criminal liability for oppression and similar Criminal 
offences committed out of the realm it was enacted by 11 Will. IIT, offices*" 
c. 12 (6), that any governor or commander-in-chief of any colony committed 
beyond the seas guilty of oppression to any of His Majesty's outof tne 
subjects, or of any other crime within their respective governments r< 

or commands, might be tried and punished by the Court of King's 
Bench in England or by special commissioners. And the statute 
42 Geo. Ill, c. 85, makes a similar provision for the trial and 
punishment of persons employed in the public service out of Great 
Britain in any similar military office or capacity (c). 

100. General Sir Thomas Picton was tried under this Act in Case of Sir 
1806 for having, while Governor of Trinidad, given an order for the p^ton 3 
infliction of torture on a female from whom it was desired to obtain isotj. 
evidence in support of a prosecution for a robbery committed in her 
master's house. General Picton's defence was that the occurrence 

took place in the ordinary course of judicial proceedings, over 
which he presided as Governor, and that torture was- allowed in 
such cases by the law of the island. The case was tried twice, and 
was again elaborately argued 011 the special verdict found at the 
second trial, but judgment was never prayed (d). It appears, 
however, to have been thought at the time that had the opinion of 
the court been delivered, judgment would have been given against 
General Picton, though the jury found that by the law of Spain 
torture existed in Trinidad at the time of the cession of that 
island to Great Britain, and that no malice existed in the mind of 
the defendant, save so far as might be inferred from the acts 
complained of, if found to be illegal (e). 

101. With respect to the question how for defect in the jurisdic- Execution 
tion or procedure of the court by whom a sentence is given, or want teiices" 4c. 
of authority, irregularity, or excess in the person by whom the 
sentence is executed, may render the court or person executing 

the sentence criminally responsible, there is but little to be found 
in the books. Thei-e appears, however, to be authority for the 
following propositions : 

(i.) If, first, the court who passed the sentence had no colour of 

(a) See Li. v. Trainer, 4 F. and P. 105 ; baa-kins v. Lor<lliokeby, 4 if. and F. S06 ; 
JKeit/ft/et/ v. AW/, 4 F. and P. 763 ; K. v. Hutchinson, 9 Cox Cr. Ca. 555. 

(b) 11 & 12 Will. lit, in Ruff head. 

(c) See also the two Acts 24 Geo. Ill, sess. 2, c. 25, s. 64, etc., and 2(5 Geo. Ill, 
c. 57, making elaborate provisions for the trial in Great Britain of British subjects 
for extortion and misd' meanors committed in India. 

(d) 30 Ho-n oil State Trials, 226. 

() 30 Hi.wBll State Trials, Hoo, note. 



144 



POWERS or COURTS or LAW, ETC. 



VIII. jurisdiction in the matter, all its proceedings area mere nullity, and 
both the court and the officer who executed the sentence are mere 
wrong-doers ; and in the case of an execution the officer may 
perhaps in strictness of law be guilty of murder as a principal, and 
the members of the court may be guilty of a misdemeanor, and also 
as accessories to the murder (a). 

(ii.) If, secondly, the court had no jurisdiction, but it acted 
under colour of a writ or commission, such as might lawfully be 
issued, then although the writ or commission be irregular and so 
the sentence erroneous and voidable, it seems that it is not a nullity, 
and that neither the court nor the officers who execute the sentence 
can be treated as mere wrong-doers, though the court may be 
guilty of a misprision (b). If, again, the court had jurisdiction, but 
passed an erroneous sentence, neither the judge nor an officer who 
innocently executes the sentence is criminally liable (c). 

(iii.) The sentence must be executed by the proper officer, and 
if any person who is not duly authorised executes it he is a 
wrong-doer (d). 

(iv.) The execution must pursue the judgment, subject to any 
lawful alteration by the Crown, for if a man is beheaded who 
ought to have been hanged, the officer is a wrong-doer (<?). 

There appears to be no authority for applying the doctrine of 
trespass ab initio to the case of irregular execution of a sentence, 
and it would seem that the officer would be liable only for so much 
of his acts as is in excess of his authority. Malice (in the popular 
sense of the word) in the officer appears to be wholly immaterial, 
so long as he keeps within the limits of his authority, for he is bound 
to execute the sentence ; but if he grossly exceeds the measure of the 
sentence which he is authorised to inflict, and if he so barbarously 
flog a man sentenced to flogging as by plain excess to cause his 
death, he will be a -wrong-doer as to the excess (/). 

(vi.) Protection of Persons Acting under the Army Act 
and other Acts. 

102. It remains only to notice that officers are to a certain 
extent protected against actions by s. 170 of the Army Act, which 
provides that an action against any person for any act done in 
the execution, or intended execution, of the Act, or in respect of 
any alleged default in the execution of the Act, must be com- 
menced within six months. Tender of amends before the action 
may, in lieu of or in addition to any other plea, be pleaded. Such 
actions, as well as actions against members of a court-martial 
in respect of a sentence of such court, can only be brought in one 
of the superior courts in the United Kingdom (which courts have 
jurisdiction wherever the matter complained of occurred) or in a 
supreme court in India, or in a colonial court of superior jurisdiction 
in the colony where the matter occurred (g}. 

(a) Hale, Pleas of the Crown, i. 497, 501. Bteph. Dig. Crlm. Law (t>th Edn.),| 
Art. 218. 

(b) Hale 1. 497-509 ; Hawkins, Bk. i. ch. 28, s. 6. 

(c) Hale 1. 501. 

(d) Hale i. 501, Coke, Inst. 1. 128. 

(") Coke, Inst. iii. 52 ,211 ; Hale i. 501. 
f) HawKins, Bk. i. ch. 29, s. 5, and see Governor Wall's case, svpra. paras. 92-94. 

(g) The effect of the Public Authorities Protection Act, 1893 (56 & 57 Viet. c. 61) 
appears to be, by s. 2, to repeal subs. (2) of a. 170 of the Army Act, and by s. 1 to 
re-enact similar provisions with the addition of the provisions as to costs contained 
in paragraphs (6) and (rf) of s. 1. 

Subsection (3) of section 40 of the Militia Act, 1882, must be regarded as similarly 
modified. 



Protection 
of persons 
acting 
under 
Statute. 



Execution of Sentences. 145 

In the case of persons actiug under the Militia Acts, there is an Ch. VIII.- 
analagous provision in s. 46 of the Militia Act, 1882 ; and officers 
acting under other Acts can avail themselves of the general 
provisions of the Public Authorities Protection Act, 1893 (a). 

103. The statements of law in this chapter apply to England, Application 
but the law in Scotland, Ireland, and the colonies may be considered of oha P ter - 
to be very similar. 



(a) 56 & 57 Viet. c. 61. 



(M.L.) 



146 



CHAPTER IX. 



HISTORY OF THE MILITARY FORCES OF THE 

CROWN. 

Object of 1. The object of this chapter is to give a short summary of the 

chapter. history of the Military Forces, and principally of those in England 

For details the authorities cited in the notes must be consulted (a). 

Two periods 2. The history of the English Forces may be divided into two 

tokjstoryof main periods: the one prior, and the other subsequent to the 

Restoration of Charles the Second in 1660. It was not until after 

1660 that a Standing Army was raised, and the Militia organised 

under Act of Parliament. Before 1660 the organisation of the 

Forces was much less systematic, although it rested on laws which 

have come down to the present time, and therefore deserve notice. 

First Period. General and Feudal Levies. 

General 3, Before the Norman Conquest, all freemen between the ages of 

servi'ce^in 15 and 60 who were capable of bearing arms were bound to go 

early times, forth to the host (fyrd), or general levy, at the king's summons. 

Fyrd-fare was one of the three liabilities of all owners of land in 

England (b). Those guilty of neglecting it were subjected to a 

very heavy penalty called fyrd-wiie, which might extend even to 

the forfeiture of the whole of their land. The levy of each shire 

took the field, down to the Norman conquest, under its alderman 

or military chief of the shire, and after the Conquest, under the 

sheriff (c). 

Double 4. This general levy of all able-bodied (d) men in each county 

* ia( ^ a double aspect. As a civil force it was known as the 
posse comitatus, which the sheriff was entitled to call on to arrest 
criminals and suppress riots ; and the obligation to serve in it 
was closely connected with the obligation attaching to every man 
of keeping watch and ward, and of following the hue and cry, 
which was directed against criminals (e). In its other aspect it was 

(a) See Clode's Military Forces of the Crown (Murray, 1869) which contains many 
original authorities, chiefly for the period subsequent to 1660. For the earlier 
period many extracts from and references to original authorities are contained in 
Grose's Military Antiquities, and in Scott's British Army. The powers of the Crown 
for the defence of the realm are enumerated and discussed in the Ship Money Ca.se 
(see especially St. John's argument), Howell's State Trials, iii. 825, summarised in 
Clode, Mil. Forces, i. 354, 355. The constitution of the general levy and the feudal 
army, and the incidence of feudal tenure, are described in the ordinary histories, 
euch as Hallam's Middle Ages, and Constitutional History ; Lingard's History ; 
Taswell Langmead's Constitutional History (1st edn.) ; and especially Stubbs' 
Constitutional History (popular edn.) and also in legal books, such as Coke on 
Littleton, and Blackstone's Commentaries. The chapters in Social England on 
military matters and Professor Oman's History of the Art of War may also be 
consulted. 

(b) Afterwards called the trinodfi necessitas, the other two liabilities being to 
maintain fortifications and to repair bridges. In some cases the age mentioned is 
16 (Stubbs, Const. Hist. i. 102 &c.). 

(c) See Stubbs, Const. Hist. i. 209, 469. 

(d) Stubbs, Select Charters, 370-3 ; Stubbs, Const, Hist., i. 209, 633, ii. 220; Grose, 
Mil. Antiq.. i. 9 ; 13 Bdw. I (Stat. Winton), st. 2, c. 6 ; 3 & 4 Bdw. VI, c. 5 ; 1 Mar. 
BBSS. 2, c. 12 1 Eliz. c. 16. 

(e) It was known as the ban or fyrd or expedition, Stubbs, Const. Hist., i. 81, 209, 
494, 633. See Commissions in Rymer's Foedera. 



General and Feudal Levies. 147 

a military force, and was called out, under the sheriff or some other Ch. IX. 
officer of the Crown, to defend the realm in civil war or against 
foreign foes. The force was liable to serve only in the kingdom, 
and, except in case of invasion, only in its own county. Sometimes 
it was called out in all the counties ; at other times, in particular 
counties only, as, for instance, in the northern counties, to resist 
the Scots, or in the midland counties, to resist the Welsh. The 
general levy was repeatedly called out by the Norman and Angevin 
kings (1086 to 1204) for the suppression of internal rebellion or of 
border warfare against the Welsh and Scots. It was unsuitable 
for warfare beyond the seas (a). But it apparently served as a 
mode of obtaining troops down, at any rate, to the fourteenth 
century (6). 

5. The general levy was organised by divers ordinances and Organiza- 
statutes, which determined the arms and, "in the case of the more g^rai 
wealthy, the horses which each man was to provide, in accordance levy, 
with the amount of his land and goods. The sheriffs, mayors, and 
justices, as well as the constables annually appointed for the 
purpose in each hundred, were to enforce the obligation to serve 

and pro^vide arms, and twice every year were to inquire into the 
arms provided, or, as it was termed, to hold " views of armour." 
Writs were often addressed by the King to the sheriffs and others 
to array or summon before them the men liable to service (whom 
from being sworn to keep arms were called jurati ad anna), and to 
punish defaulters ; and the writ often directed such arrayers, or 
other persons named in it, to lead the force on active service (c). 

6. In the time of Edward the Sixth, we find lieutenants appointed Lieutenants 
in the counties to array, or lead, or both ; and after the reign of " 
Mary, such lieutenants, now commonly known as Lords Lieutenant, 

were usually appointed for those purposes (d). 

7. Closely connected with the general levy was the Crown's Right of 
prerogative* of purveyance, which enabled the Crown to enforce P urve y ance - 
the supply of carriages, carpenters, smiths, and other artificers, 

as well as of victuals, for military purposes (e). 

8. Even before the Norman conquest the general levy took long Thegns. 
to raise and was difficult to keep together, especially when 
operating outside the boundary of its own petty kingdom. For 

a more trustworthy, better-armed, and more permanent force, the 
old English kings relied on their military dependents, to whom 

(a) It was summoned by William II to Hastings in 1094 to cross for a campaign 
in France, but was dismissed. 

(6) See Statutes, 1 Ed. 3, cc. 7, 15 ; 18 Ed. 3, st. 2, c. 7. 

(c) Hen. II, Assize of Arms ; Stubbs, Select Charters, 153, and the statutes 13 
Edw. I (Stat. Winton), c. 6 ; 34 Edw. I, st. 2 in common editions ; 2 Edw. Ill, c. 6 ; 
5 Hen. IV, c. 3 ; 3 Hen. VIII, c. 3 ; :i3 Hen. VIII, cc. 5, 9 ; 4 & 5 Phil, and Mary, c. 2. 




Palgrave's Parliamentary Writs. 



(flO See Acts 3 & 4 Edw. VI, c. 5, s. 13, 1 Mar. sess. 2, c. 12, s. 12 ; 4 & 5 Phil, and 
Mar. c. 3, 1 Eliz. c. 16. Clode, Mil. Forces, i. 32; Scott, British Army, i. 329, 348; 
Grose, Mil. Antiq., i. 79. Strype (Ecclesiastical Memorials ii. 278), says that 
lieutenants were first appointed in 3 Edw. VI (1549), and were appointed annually. 
They are spoken of by Camdea (Britannia, i. clxvii, clxxxix), as appointed in 
troublesome times, and by Holinshed (Chronicles i. 155), as appointed in time of 
necessity. They were also appointed for several counties. An abstract of the 
authority given to a lieutenant by his commission is to be found in Lodge's Illus- 
trations of British History, ii. 325 ; see also 419 to 426 ; see also Scott, Brit. Army, 
i, 348. After 1660, they became statutory officers appointed for the militia, see 
below, para. 84. 

(e) Stubbs, Select Charters, p. 359, and divers writs in Rymer's Fredera ; 
Stubbs, Const. Hist., ii. 564 ; Clode, Mil. Forces, i. 347. Grose, Mil. Antiq., i. 86. 
The Crown's right of purveyance was restrained by many Acts, and ultimately 
abolished by 12 Cha. II. c. 24. 

(M.L.) K 2 



148 



HISTORY OF THE FORCES. 



Ch. IX. they had granted laud on the condition of military service. These 
warriors were originally known as Gesiths, but from the ninth 
century onward that name is superseded by thegn. Alfred and his 
successors, under the stress of their Danish wars, incorporated in 
the thegnhood all the men of substance in the realm, whatever 
their origin, wealthy yeomen and merchants no less than members 
of ancient noble families (a). 

Feudal levy. 9. The Norman conquest in 1066 changed the condition of the 
upper ranks of the military force by substituting a wholly feu- 
dalized military aristocracy for the sernifeudal thegnhood. The 
whole of England was carved out by William I into a number 
of military fiefs held from the Crown. Some were small, but many 
were very large earldoms and baronies the holders of which cut 
up their vast domains into smaller military fiefs or knights-fees 
dependent upon themselves. The holder of a military fief might 
therefore be either a tenant in chief holding directly from the 
Crown, or a sub-tenant holding under some great earl or baron. 
All alike were bound to attend the king at their own expense on 
horseback and in armour with their retainers, who might be either 
mounted or on foot (6). After 1289 (c) grants of laud could only 
bind the holder to render service to the king or other superior lord, 
and not to the grantor of the land, arid consequently the number of 
the retainers of the inferior lords gradually diminished. Some of 
the great earls and barons had an establishment of domestic 
knights not holding lands and entirely dependent on them. 

The period of feudal service was limited by custom to forty days 
in each year, a term too short for foreign expeditions, and con- 
sequently the forces so raised were often induced by high pay to 
continue to serve as mercenaries (see below, para. 24). Though 
the earlier kings successfully demanded service abroad as well as 
service at home, the obligation to serve abroad was challenged at an i 
early date (1198), and as time passed the feudal tenants displayed! 
increasing reluctance to serve out of the kingdom and at length 
refused to do so (d). The knights who on horseback and in a coat 
of mail formed the most prominent feature of warfare in the 
Middle Ages served under the feudal levy. The infantry were 
either the retainers of those knights, or raised from the general 
levy, or by contract (see below, para. 24). The lancers and archers, 
however raised, were taken chiefly from the middle classes and 
highly paid (e). 

10. Personal service formed the basis alike of the feudal and 
of the general levy, but the obligation to serve in the general 
levy rested on every man as a citizen, or as it was termed " on every 
" man within the allegiance of the king." The feudal levy was 
dependent on homage or on tenure under some feudal lord, whether 
the king or some great earl or baron. Obviously there must always 
have been many feudal tenants unable to render personal service, 

(a) Stubbs, Const. Hist., i, 172, 210. 

(6) Grose, Mil. Antiq., i. 8, 120; Scott. Brit. Army, i. 119, 138. 

(c) By the statute known as " Quia Emptores" (18 Edw. I. c. 1), which, while 
authorising the sale of lands, provided that the purchaser of land (called in the Act 
the feoffee) should hold it of the chief or superior lord and not of the vendor (called 
in the Act the feoffor), and should render to the chief or superior lord the same 
services which the vendor rendered before the sale. 

(d) Stubbs, Const. Hist. i. pp. 284 ff ; ii. pp. 293. The feudal levy appears to have 
been frequently summoned for service beyond the seas down to 1300, but fell into 
disuse before 1400. In 1198, Bishops Hugh, of Lincoln, and Herbert, of Salisbury, 
and in 1213 the northern barons, refused foreign service as not obligatory under 
their tenure, and it was opposed more seriously by the Earls of Norfolk and Hereford 
in 1296, 1297. 

(e) Hallam, Const. Hist., ii. 129; Stubbs, Const. Hist., ii. 297. 



Composi- 
tion in lieu 
of personal 
service. 



General and Feudal Levies. 149 

and the calling out under the general levy of the whole population Ch. IX. 
capable of bearing arms can but very rarely have been desirable 
or possible (a). Service by deputy, or payment in lieu of personal 
service, and the calling out of a quota only, were accordingly 
allowed from very early times (b). 

11. In the case of the feudal levy, we must first notice the clergy, In case of 
who held their lands by the tenure known as FranJkalmoign, and ft levy- 
who, as a rule, performed their military service by deputy or paid a 
composition (c), though cases of military prelates are well known 

in history. Women also, and infants, and other feudal tenants 
who were unable to render personal service, either found substitutes 
or paid a composition (d) ; and the payment of a composition in lieu 
of service was at an early date (e) extended from those who were 
unable to those who were unwilling to serve in person. 

12. Henry I appears to have been the first to require a number Scutage 
of knights, instead of serving in person for forty days, to equip Bscua s e - 
and maintain a knight in service for a longer period : and Henry II 
began (about 1156) to levy a money composition for personal 
service, under the name of Scutage or Escuage (/). This com- 
position was probably levied at first only by agreement between 

the king and his subjects ; but it subsequently became an abuse 
and gave rise to remonstrances as a tax levied by royal authority 
only ; and from 1215 until the end of the reign of Edward II (1327) 
it was levied only under assessment by Parliament (g). With the 
decay of feudalism the tax fell into disuse (h) ; and it was 
ultimately, together with tenure by knight service, abolished 
during the Commonwealth, and finally extinguished on the 
Restoration in 1660 (i). 

13. Similarly, in the case of the general levy, the practice arose In case of 
of calling on a certain quota only from each county to serve in fjf^^uota 
person, and of requiring those not so called on to supply with arms and contri- 
and victuals, and to defray the expenses of those who served in Dutions t(< 
person (_;'). This developed into a sort of tax on the county or e 
township, not under the authority of Parliament, and continued 

until very recently, in the form of a liability on the part of the 
county to pay a part of the expenses of the militia (). 

14. Both the feudal and the general levy when summoned for Mode of 
war, were summoned by writ from the Crown. calling out 

These writs did not always distinguish between those liable to 
serve under the feudal levy and those liable under the general 

(a) Stubbs, Const. Hist., ii. 290. 

(b) As early as Henry II. 

(c) Grose, Mil. Antiq., i. 5; Scott, i. 138, 248. See, however, writs requiring 
personal service in Rymer's Fffidera ; one is printed by Grose, Mil. Antiq., i. 5. 

(d) Grose, Mil. Antiq., i. 6, 7. 

(e) As early as Henry I. 

(f) Stubbs, Select Charters, 281, 343,364; Const. Hist., i. 623, 626, 632; n. 291 ; 
Grose, Mil. Antiq., i. 7, 8 ; Scott, Brit. Army, i. 119, 138, 245. Escuage is in Latin 
Scutagium, from scutum, a name given to a fief held on military service. 

(g) I.e., "the common council of the realm." The Great Charter granted by 
John in 1215 required this ; the omission of the requirement from later charters 
did not at first alter the practice. Stnbbs, Const. Hist., i. 573; Grose, Mil. Antiq., 
i. 7 ; Coke, Inst., i. 72 b, 74 b, note 37 ; Stubbs, Select Charters, 293, 343, 364. 

(fi) Coke, Inst., i. 74 b, note 37. 

(i) By Act 12 Cha. II, c. 24, together with other feudal incidents. Excise duties 
on beer were granted to the Crown as an equivalent. 

(j) Stubbs, Const, Hist., ii. 297. Stubbs, Select Chatters, 359. During the great 
French wars, 1338 to 1453, the main part of the armies led by Edward III and his 
successors were mercenaries (see below, paragraphs 24, 25). But some of them 
were still raised under commissions of array (see 1 Ed. 3, cc. 7, 15 ; 18 Ed. 3, c. 7). 

(A-) Part of this was "coat and conduct money," said to have begun in the reign of 
Queen Elizabeth, with a promise of repayment by the Crown, and formed a subject of 
dispute between Charles I and the Parliament; Scott, Brit. Army, i. 448; Clode, 
Mil. Forces, i. 21 ; Cobbett, Parliamentary History, ii. 549, 562, 642, 651, 655. 



150 HISTORY OF THE FORCES. 

Ch. IX. levy, and those who served under the claim of purveyance (a) ; 
though strictly in the case of the feudal levy, a special summons 
ought to be issued to each baron, bishop, and abbot, and served 
by the sheriff, while those of lower rank were summoned by a 
general proclamation of the sheriff made in obedience to the royal 
writ (6). The writs followed the latter practice as to the quota, 
and directed the commissioners under them to " elect " a number 
of men, that is, virtually to press them to join the army for 
general service. These writs in the reign of Edward I became 
known as " commissions of array " (c). 

to U ie St alit S as 15 ' ^ ^ ar as these commissions were to raise a force for the. 

of Com- defence of the realm against invasion, they were perfectly legal ; 

missions for but even if they were always legal in form, they were used, not 

Foreign 6 C merely for the legal purpose of raising troops to resist invasion, or 

service. to invade Scotland (which might be treated as resisting invasion), 

but also for the purpose of raising troops for foreign service. They 

threw on the counties the burden of finding soldiers for and 

paying the expenses of foreign wars, and thus indirectly taxed them 

without consent of Parliament, a practice which after the rise 

of Parliament at any rate was unconstitutional. 

Resistance 16. This grievance was accordingly resisted by Parliament ; and 
~ ^7 a ser i es of Acts beginning in 1327, it was provided that men 
should not be required to serve out of their counties except in the 
case of invasion ; that men-at-arms, hoblers, and archers chosen to 
serve out of England should be paid by the Crown after leaving 
their counties ; and that no man should be constrained to find men- 
at-arms, hoblers, or archers, unless bound by feudal service, or 
under the authority of Parliament (d). 

Impress- 17. During the Wars of the Roses and the reigns of the Tudors 

duringWars troops were raised in the most irregular manner. The greater part 
of the Roses of the real fighting was done by volunteers hired on private 
accoun t ky rival barons, and by retainers gathered under the 
custom of " livery and maintenance," under which great men gave 
their badge and livery to their smaller neighbours, and undertook 
to champion their quarrels, the receiver, on the other hand, 
agreeing to come out in arms to aid his protector whenever the 
latter took the field. During these wars constitutional rights 
were ignored and forgotten, and not only were commissions of array 
continued, but the practice of impressing soldiers under them became 
so common, that impressment was assumed to be the right of the 
Crown (*;} ; while certain Acts in the time of Henry VIII and of 
Philip and Mary increased and enforced the liability to provide 
horses and arms in proportion to property (/), and to practise 

(a) This confusion began as early as Henry III. 

(b) Grose, Mil. Antiq., i. 65 ; " Stubbs, 'Const. Hist., ii. 296 ; Stubbs, Select 
Charters, 281. 

(c) Stubbs, Const. Hist., ii. 297. Hallam, Const. Hist., ii. 133, states the earliest 
commission of array as of 1324 and the last of 1527. But see Stubbs, Select Charters, 
359, and Const. Hist., ii. 297, and the commissions of musters of Elizabeth's reign, 
Grose, Mil. Antiq., i. 79. 

(rf) Stubbs, Select Charters, 359; Const. Hist., ii. 297, 417, 421,568; iii. 285-7; 
Lingard, iv. ch. 2 ; Acts 1 Edw. Ill, st. 2, cc. 5, 7, 15 ; 18 Edw. Ill, st. 2, c. 7 : 25 
Edw. Ill, st. 5, c. 8 ; 4 Hen. IV, c. 13. The form of commissions of array was settled 
in Parliament in 5 Hen. IV, A.D. 1404. Stubbs, Const. Hist., iii. 281. " Hobler' 1 was a 
light cavalry soldier; Grose, Mil. Antiq., i, 106; Scott, Brit. Army, ii. 22, 329. For 
cases of armies raised at the charge of counties, see Sir R. Cotton's paper, printed in 
Grose, Mil. Antiq.. i. 74, and the Ship Money Case in Howell's State Trials, iii. 825. 

(e) Stubbs, Const. Hist., iii. 285; Rymer's Fcedera ; Hallam, Const. Hist., ii. 130. 
See 1 Edw. Ill, st. 2, c. 15. 

(/) 33 Hen. VIII, cc. 5, 9; 4 & 5 Phil, and Mar. c. 2. The last Act repealed the 
old Act, except 33 Hen. VII, c. 9, as to providing arms. It also required cities and 
towns to provide arms at the common charge. Compare Stubbs, Select Charters, 154. 



Commissions of Musters. 151 

archery (a), and another Act of Philip and Mary imposed a penalty Ch. IX. 
for not attending musters of commissioners authorised to muster 
men and levy the ablest for the wars (6) ; and we learn from the 
Acts in Elizabeth's reign (c) as well as from Shakspeare (d), that 
impressment was then commonly considered to be one of the pre- 
rogatives of the Crown (e). 

18. In 1604, the first Parliament of James I repealed the above- Repeal of 
mentioned Acts of Henry VIII and of Philip and Mary (/) as j^ 1 
regards the provision of armour and horses : and as that repeal reign, of 
was held to revive the older Acts respecting the provision of Jaa I * 
armour, those Acts were finally repealed in 1624, the last year of 

the reign of James I (g). 

19. The liability to serve in the general levy, however, still con- Commis- 
tinued, and was still enforced by means of commissions of array, masters, 
which gradually developed into a rather different form under the and trained 
title of Commissions of Musters (k). These commissions directed banrls - 
the commissioners to register and muster all persons liable to provide 

horses, arms, or soldiers, and to select a convenient number of 
such persons to serve in person at the charge of their counties for 
the service and defence of the Crown, who were to be sorted into 
bands, and trained and exercised at the charge of the different 
parishes in the county. These commissions and this description 
of training appeared to have assumed at the end of the sixteenth 
and the beginning of the seventeenth century a quasi-permanent 
form under lieutenants of counties or other commissioners, and the 
bands trained under them became known as Trained or Train Bands, 
and were mustered annually. At the same time there existed, 
side by side with the trained bands, and in more or less connection 
with them, voluntary bodies, such as the Honourable Artillery 
Company in London, and similar bodies elsewhere, which doubtless 
owed their origin to the fact of its being fashionable to possess 
military acquirements (i). 

(a) 3 Hen. VIII, c. 3 ; 33 Hen. VIII, c. 9, containing an order to practise 
archery, with a prohibition of unlawful games, as bowles, tennis, coitinge, &c. 

(6) 4 & 5 Phil, and Mar., c. 3. This assumed the right to muster and impress. 

(c) 5 Eliz. c. 5, s. 24 ; 35 Eliz. c. 4 ; 43 Eliz. cc. 3, 9. 

(d)^ Shakspeare, Hen. IV, Part I, Act 4, sc. 2, Falstaff says : "I have misused the 
king's press damnably ; I have got in exchange of 150 soldiers 300 and odd pounds. I 
press me none but good householders, yeomen's sons ; inquire me out contracted 
bachelors, such as had been asked twice on the banns ; such a commodity of warm 
slaves as had as lief hear the devil as a drum ; such as fear the report of a culverin 
worse than a struck deer, or a hurt wild fowl * * * and they have bought out their 
services ; and now my whole charge consists of * * * such as indeed were never 
soldiers, but discarded unjust serving men, younger sons to younger brothers, 
revolted tapsters, and ostlers trade-fallen ; the cankers of a calm world and long peace ; 
ten times more dishonourably ragged than an old-faced ancient ; and such have I to 
fill up the rooms of them that have bought out their services, that you would think 
I had 150 tattered prodigals lately come from swine-keeping. * * * Nay, and 
the villains march wide betwixt the legs, as if they had gyves on; for indeed, I had 
the most of them out of prison." 

(e) Hallam, Const. Hist., ii. 130, 131 ; Clode, Mil. Forces, i. 17 ; Gtose, Mil. Antiq., 
i. 97 ; Rushworth, Historical Collections, i. 152. 

(/) 33 Hen. VIII, c. 5 ; 4 & 5 Phil, and Mar. c. 2, repealed by 1 James I, c. 25, s. 7. 

See Hallam, Const. Hist., ii. 133. 

(g) By 21 Jas. I, c. 28 ; See Scott, Brit. Army, i. 394. 

(K) These musters are distinct from the musters of troops in pay. 

(i) Grose, Mil. Antiq., i. 79 ; ii. 324. Kaikes, in his Hist, of Hon. Artill. Compy., i. 
28-143, mentions the organisation of the trained bands in 1605, and that they were 
used to suppress riots. Provisions were made for storing and repairing the arms ; 
Rymer, A.D. 1612 ; Cobbett, Parl. Hist., ii. 782, 783, 850, 934 ; Clode, Mil. Forces, i. 29. 
Camdeii speaks of the commission to the lieutenant as a permanent commission of 
array ; the former seems practically to have superseded the other. See also the 
commissions given to lieutenants, Lodge's Illustrations of Brit. Hist., ii. 325. The 
commission there mentioned gives the lieutenant powers similar to those of the 
commission of musters and also power to use martial law, and to make a provost- 
marshal. See also Scott, Brit, Army, i. 326-8, 379, 394, 402-407. An abstract of the 
commission issued before the Spanish Armada is printed in Scott, Brit. Army, i. 345. 



152 



HISTORY OF THE FORCES. 



Oh. IX, 

Commis- 
sions of 
musters, a 
grievance 
under 
Charles I. 



Impress- 
ment 
declared 
illegal by 
Long Par- 
liament. 



Trained 
bands or 
militia 
under 
Charles I. 



'Troops 
raised 
irregularly 
during Civil 
War. 
Other 
-classes of 
soldiers. 



Crown 
grantees. 



Criminals 
and debtors. 



20. During the reign of Charles I, the commissions of musters 
were used for the purpose of exacting contributions in money and 
arms from the counties, and so taxing them without the consent of 
Parliament. These exactions were felt to be grievances, and com- 
plained of in Parliament, and, together with commissions for trying 
persons by martial law in time of peace and the practice of billeting, 
were, in 1628, declared to be illegal by the Petition of Eight (a). 
The exactions nevertheless continued, and, together with the 
impressment of soldiers and the powers of the lieutenants of 
counties, formed the subject of further complaints in the Parlia- 
ment of 1640 (b). 

21. In the Long Parliament in the same year, Charles I, though 
at first claiming the power of impressment as the ancient and 
undoubted prerogative of the Crown, assented to an Act declaring 
impressment illegal (c). This Act, after reciting rebellions in 
Ireland, which would endanger not only that kingdom, but also the 
kingdom of England, unless " a course be taken for the preventing 
thereof, and for the raising and pressing of men for those services," 
and also reciting that by the laws of the realm none of His 
Majesty's subjects ought to be impressed or compelled to serve out 
of his country, except in case of necessity or invasion, or except 
they be otherwise bound by the tenure of their lands, gave statutory 
authority to impress soldiers for service in Ireland. 

22. The Parliaments of Charles I, while protesting against the 
exactions enforced by the lieutenants of counties and the illegality 
of impressment, did not complain of the mustering of the trained 
bands ; and the value of the trained bands, or militia as they now 
began to be called, and the necessity for exercising them, and 
providing them with arms and ammunition, were recognised on 
many occasions by the Long Parliament (of). Parliament, how- 
ever, was extremely unwilling to leave the command of the militia 
under the control of the Crown exercised through the lieutenants 
of counties, and this question was one of the principal matters in 
dispute at the time of the rupture between Charles I and his 
Parliament (e). 

23. The mode in which troops were raised during the Civil War 
and the Commonwealth was necessarily irregular, and need not be 
noticed here. 

24. Before passing to the second period after the Restoration in 
1660 a short mention must be made of three other classes of soldiers 
raised in the earlier period, and of the mode of enforcing the service 
of soldiers : 

(i.) Holders of offices, pensions, lordships, or lands from the 
Crown were, at the end of the fifteenth century, made liable 
to serve at home or abroad, on pain of forfeiture (/). 
(ii.) Sometimes also criminals were pardoned, or debtors released, 
on condition of serving as soldiers (</). 

See alsq Commissions in Rymer. The modern commission to a lord lieutenant 
(Clode, Mil. Forces, i. 586), is expressed to be issued in pursuance of the Militia 
Acts. 

(a) 3 Cha. I, c. 1. See extract from Petition of Eight below, p. 613. 

(b) As to complaints in Parliament, in addition to the complaints as to ship money, 
Cobbett, Parl. Hist., ii. 233-5, 549, 561, 642, 652-5. 

(c) 16 Cha. I, c. 28. As to previous proceedings in Parliament, see Cobbett, 
Parl. Hist., ii. 968, 977-981, 1087. 

(d) Cobbett, Parl. Hist., ii. 655. See also 782-783, 849, 934. , 

(e) Cobbett, Parl. Hist., ii. 1069, 1243. Hallam, Const, Hist,, ii. 133-6. Gardiner,! 
Hist, of Eng., x. 95-110, 186-193. 

(/) By 11 Hen. VII, c. 18 ; 19 Hen. VII, c. 1 ; Clode, Mil. Forces, i. 337, 350. 
(g) Grose, Mil. Antiq., i. 73 ; Scott, Brit. Army, i. 282. 



Other Classes of Soldiers. 153 

(iii.) The third and most important class was that of men Ch. IX. 
who received pay for their services, who were termed 
" mercenaries," or " stipendiaries," terms which, though Mer " . 
originally like the term " soldiers " (a), meaning those c ' 
who were paid for their services, came at an early period 
to mean those who adopted arms as a profession, and 
served solely for pay. The convenience of employing 
mercenaries is obvious, having regard to the limitations on 
the service of the general levy and of the feudal levy 
mentioned above ; and from the date of the Conquest in 
1066 mercenaries formed part of the forces of the Crown. 
The distinction, however, between these troops and those 
raised under the feudal or general levy was not always a 
wide one, as men raised under those levies were often 
induced by liberal payment to serve beyond the seas, or 
for more than 40 days, and doubtless often fell into the 
class of mercenaries. 

25. Mercenaries were usually raised by an indenture or contract Raising of 
between the king and some person of high position, who was able ^g^bv 
by his influence or wealth to obtain soldiers. The men so raised indentures 
were at first chiefly foreigners ; and as their employment in England r con ' 1 
was not only strongly objected to, but was rendered less necessary 

by the liability of the inhabitants of the realm to service at 
home, they were almost entirely employed on foreign service. 
After the raising of men compulsorily under commissions of array 
was, as before mentioned, restrained by Parliament in the reign of 
Edward III, the practice of raising troops by indentures became 
more common ; in fact, after the beginning of the reign of 
Henry V, the larger part of the forces of the Crown were so 
raised (b). 

26. At first the soldiers so raised were enlisted to serve the officer Enlistment 
who raised them, but after 1491 (7 Henry VII), if not before, they 

were enlisted to serve the king (c-), and as early as the time of 
Charles I, enlistment was carried on under beating orders issued 
by the Crown (d). The mode of raising troops by contract with 
an individual, sometimes fora sum of money, sometimes on condition 
of the contractor having the appointment of the officers of the 
force raised continued (e), notwithstanding the change of enlistment 
from a contract to serve the officer to a contract to serve the Crown, 
and notwithstanding that the establishment of a standing army 
altered the practice of enlisting for a particular war to that of 
enlisting for continuous service. Enlistment, however, was strictly 
regimental, that is, for service in the particular regiment with which 
the recruiting officer was connected. 

27. The obligation to serve (except in the case of a breach of Enforce- 
that obligation by desertion in the field) was not enforced in military J^"* ?; f 
courts, but by civil penalties ; in the case of the general levy by to s'en-e? 1 

(a) Soldier being derived from "solidus" -'solde'' or pay; "soldato" in Italian 
meaning a hired man. For conductitii, or hired men, mentioned also in Ducange 
(the condottieri of Italy), there seems to be no English equivalent. 

(b) Grose, Mil. Antiq., i. 57-77; Hallam, Const. Hist., ii. 130 ; Stubbs, Const. 
Hist., iii. 557 ; Magna Carta of King John, Art. 41 ; Stubbs, Select Charters, 294. 
In Rymer's Fcedera, there are contracts between Hen. I and Earl of Flanders, for 
supplying troops. See also Rymer, A.D. 1284, 1295 ; Grose, Mil. Antiq., i. 188 ; Scott. 
Brit. Army, i. 264, 279. 

(c) See preamble to 18 Hen. VI, cc. 18, 19 ; 7 Hen. VII, c. 1 ; 3 Hen. VIII, c. 5 
and remarks on these Acts in " The Case of Soldiers," Coke's Reports, Part VI, 27a. ' 

(d) So called from the expression at the beginning of the order, " to raise troops 
by beat of drum," which was derived from the actual use of the drum. See Clode 
Mil. Forces, ii. 580-584. 

() Clode, Mil. Forces, ii. 6, 581. 



154 HISTORY OF THE FORCES. 

Ch. IX. fine, seizure of property, and imprisonment, and in the case of the 

feudal levy by fine and forfeiture of the fief held on condition of 

rendering military service (a). Indeed, the Crown derived an income 
from distraining owners of fiefs to assume knighthood (6). More- 
over, the high-handed proceedings of fine and imprisonment which 
we find, even after the reign of Queen Elizabeth, exercised in other 
cases, were doubtless exercised for the purpose of compelling 
persons to serve. 

In case of 28. In the case of mercenaries, these powers were insufficient 
and, therefore, a soldier deserting from the captain with whom 
he contracted to serve, and who was under an indenture with the 
Crown to provide a certain number of soldiers, was in 1439 declared 
by Parliament to be punishable as a felon, that is, in a civil 
court (c), and at a later date this enactment was extended to soldiers 
who had contracted to serve the Crown (d). 

Punish- 29. The punishment of desertion in a civil court became 

ment of practically unnecessary after the Revolution, when the Mutiny Acts 
alter Revo- passed annually by Parliament provided a more speedy punishment 
lutiou. by means of a military court (e). 

Second Period Standing Army. 

Changes in 30. At the Restoration in 1660, considerable changes took place 
st tary in the military system of the country. Knight service, with the 
the Restora- feudal levy and its incidents, including escuage, was finally 
tion in 1660. abolished (/) ; the organisation of the general levy, of which the 
trained bands formed part, into the militia was completed under 
the authority of Parliament, and at the same time the king- 
laid the foundation of the present standing army. 

No standing 31. Before the Restoration there had been no standing army. 

Restora^ f0re Armies f r particular wars had indeed been raised and paid for by 

tion. Parliament, but were not kept on foot as standing armies after the 

conclusion of the wars for which they were raised, mainly, perhaps, 

on account of the cost (g\ A few troops were also maintained in 

certain garrisons', and small corps of serjeants-at-arms (A), yeomen 

of the guard (i), and gentlemen pensioners (j) existed ; but these 

(a) See Acts quoted above in note (/), p. 152 ; and writ to arrayers of 17th June, 
1327, in Rymer's Foedera, directing the arrayers to punish the disobedient by arrest 
and seizure into the King's hands of their lands, tenements, goods, and chattels ; 
Lingard, iv. ch. ii. 

(6) Grose, Mil. Antiq., i. 3, 8 ; Stubbs, Const. Hist., ii. 294; Hallarn, Middle 
Ages, i. 170 ; Scott, Brit. Army, i. 119, 122, 245 ; Cobbelt, Parl. Hist., ii. 549, (542. 

(c) 18 Hen. VI, c. 19. Every felony at that time involved capital punishment 
and forfeiture of personal property. 

(d) 7 Hen. VII, c. 1 ; 3 Hen. VIII, c. 5 ; see also 2 & 3 Edw. VI, c. 2, revived by 
4 & 5 Phil, and Mar., c. 3, s. 8. The Acts also provided for the punishment of certain 
frauds, as regards pay, &c. 

(t) The above mentioned Acts, 7 Hen. VII, c. 1 ; and 3 Hen. VIII, c. 5, were 
determined to be in force by the Case of Soldiers, Coke's Rep., Part vi, 21a, and 
were put in execution by James II, Rex. v. Dale, 2 Shower's Rep., 511 ; Howell's 
State Trials, xii. 262, note 7, but being in practice rendered useless by the Annual 
Mutiny Acts, were repealed as obsolete by the Statute Law Revision Act, 1863. 
Grose,'Mil. Antiq., i. 65, writing before that repeal, observes that if the Mutiny Act 
were at any time to expire, the soldier would be punishable for desertion in a civil 
court under the above-mentioned Acts. See also Hale, Pleas of the Crown, i. 670-80; 
Blackstone's Commentaries, iv. 102 ; Clode, Mil. Forces, i. 350. Macaulay, in his 
History (iii. 43), says that the Acts put in force by James II were obsolete, and 
that the construction put upon them by the judges was considered by respectable 
jurists as unsound. It appears, however, from the report of the case that the 
illegality, if any, was in regard to the place of execution of the soldier convicted, and 
not in the fact of his prosecution. 

(/) By 12 Cha. II, c. 24. 

(g) Grose, Mil. Antiq., i. 61 ; Scott, Brit. Army, i. 328. 

(h) Now a purely civil body ; Grose, Mil. Antiq., i. 61, 173-175. 

(i) Established by Hen. VII in 1485 ; Hallam, Const. Hist., ii. 131 ; Grose, Mil. 
Antiq., i. 61, 175-177. 

(7) Established in 1509 by Hen. VIII; Grose, Mil. Antiq., i. 61, 113-120. 



Standing Army after Restoration. 155 

corps were kept up rather as personal attendants on the King than Ch. IX. 
for operations in the field (a). The only other corps of a perma- 
nent character were the trained bands, and the Honourable 
Artillery Company of London, and similar associations, which were 
in effect either part of the general levy, or voluntary associations, 
and not in the nature of a standing army (b). 

32. The army raised by the Parliament during the Civil War was Mainten- 
disbanded under Acts of Parliament (e) passed on the Restoration standing 
in 1660, but under a section in those Acts Charles II was enabled army after 
to keep up not only the garrisons in certain fortified places, but 

also one or two of the regiments which had aided in his restora- 
tion (d). Moreover, he subsequently raised several other regiments 
by voluntary enlistment, and paid them out of the liberal grants 
made to him for life by Parliament. These regiments were main- 
tained during his reign and that of his successor, James II, and 
their numbers were gradually increased, not merely on the 
occurrence or in anticipation of foreign war, but on other 
occasions (e). 

33. The maintenance of these troops, however, formed the subject Mainteu- 
of frequent remonstrances in Parliament (/), and the increase of standing 
their numbers by James II was one of the causes which led to the army in 
Revolution of 1688. At that time, while the opponents of the Court p^ e of with . 
party during the previous reigns had just escaped from the evils and out consent 
the dangers of a standing army, the Court party had not forgotten of Par l>a- 
how keenly they had felt them during the Commonwealth. Both declared 
parties therefore joined in procuring the declaration in the Bill of illegal by 
Rights (g), " that the raising or keeping a standing army within g|g h ^ 

' the Kingdom in time of peace unless it be with the consent of 
" Parliament is against law " ; a declaration annually repeated, up 
to 1878 in the preamble to the Mutiny Act, and since then in the 
preamble to the Annual Act bringing the Army Act into force. 

34. Notwithstanding the insular position of England, the course Control of 
of events since 1689 (h) has at times been such as to make the nation ^J e ^ m g llfc 
acquiesce in the necessity for keeping up a standing army, and Bill of 
such a force has accordingly been maintained without intermission Rights, 
since the passing of the Bill of Rights. But the raising, govern- 
ment, and payment of the army have always been expressly 
sanctioned by Parliament, and only for a period of twelve months 

at a time, so that it is a statutory, and not a prerogative force, and 
the Crown is under the necessity of asking annually for the consent 
of Parliament to its maintenance. 

(a) Grose, Mil. Antiq., i. 61. 

(6) Hallam, Const. Hist., ii. 131-133. 

(c) 12 Cha. II, cc. 9, 10, 15, 20, 27, 28. 

(d) For instance, General Monk's regiment raised at Coldstream, afterwards the 
Coldstream Guards, which, together with other regiments, was disbanded and re- 
formed on the same day. Grose, Mil. Antiq., i. 61, 98 ; Mackinnon's Hist, of Cold- 
stream Guards. The territorial titles of other regiments, as 10th North Lincoln, 
15th York, East Biding, arose similarly, no doubt, from the districts in which they 
were first raised. 

(e) As, for instance, when the garrison of Tangier was brought to England on 
the abandonment of that settlement. Grose, Mil. Antiq., i. 61, 98 ; Macaulay, Hist. 
of England, i. 293, 294. See also Clode, Mil. Forces, i. ch. iv. 

(/) Taswell Langmead, Const. Hist., 497, 609; Clode, Mil. Forces, i.ch. iv. ; 
31 Cha. If, c. 1. 

(g) 1 Will. & Mar., sess. 2, c. 2 (1689). It will be observed that this Act is a declara- 
tion of old law, not an enactment of new. 

(h) First, the engagement of England in the continental league against Louis XIV, 
accompanied by the victories of JUarlborough ; then the dangers from the Scotch 
I and other Jacobites; then the War of the Austrian Succession; the Seven Years 
War; the American War; the French Eevolution ; and the Peninsular War. 
Until the latter, the numbers were very small, see table, Clode, Mil. Forces, 398 ; 
Hallam, Const. Hist., iii. 25(5-258 ; Taswell Langmead, Const. Hist., 608. 



156 



HISTORY OF THE FORCES. 



Ch. IX, 



troops. 



35. The number of troops to be maintained is and has since 1712 
As respects ^ een mentioned in the preamble to the annual Act which sanctions 
number of the army (a), and any unauthorised augmentation of such number 
has been always resisted by Parliament (b) ; indeed Parliamentary 
authority has been invoked to enable the Crown to accept the 
services of Volunteers (c). Any excess of forces above the number 
named in the preamble to the annual Act did not, however, and 
will not affect the application to those forces of the Act enacting 
military law (d), though it would form a ground for censure or im- 
peachment of the Minister who authorised the excess. The provision 
of the Bill of Rights prevents the introduction of foreign troops into 
the kingdom without the consent of Parliament (e). 



Raising, 
&c., of 
army since 
1660. 

Compulsory 
service 
replaced by 
system of 
bounties. 



Competi- 
tion for 
recruits 
between 
army and 
militia in 
18th cen- 
tury. 



Raising, Government, and Payment of Army since 1660. 

36. A short statement will now be given of the manner in which 
the army has been raised, governed, and paid from the time of the 
Restoration until the present day. 

37. The final abolition of impressment in 1640 has been already 
mentioned, and since the Restoration in 1660 compulsory service 
in the army in the usual sense of the term has been unknown in 
this country ; but at different times Acts have been passed 
authorising the impressment of certain persons of blemished 
character, or unsettled mode of life (/). Still for the greater part 
of the period enlistment has been entirely voluntary, recruits 
having been induced to enlist by means of sums called bounties, 
paid to them on their enlistment, which in time of war rose to a 
considerable amount (g). 

38. During the wars of the greater part of the eighteenth century 
recruits were wanted for the militia as well as for the army, so 
that difficulties constantly arose in consequence of competition 
between the officers recruiting for the two forces. These difficulties 
were intensified by the use of the ballot for the purpose of raising 
the militia, inasmuch as parishes, in order to avoid the ballot by 
obtaining volunteers, and persons drawn in the ballot for service, 
in order to obtain substitutes, paid high prices to the very men who 

(a) Formerly the Annual Mutiny Act, and now the Army (Annual) Act. The 
first Act in which the numbers were mentioned was 12 Ann. c. 13, which regulated 
the number and discipline of the forces continued on foot after the conclusion of the 
peace of Utrecht. 

(6) Clode, Mil. Forces, i. 85-89. 

(c) See below, para. 110, et seg. See also s. 3 of the Reserve Forces and Militia 
Act, 1898, below, p. 653. 

(rf) This has recently been provided for by express enactment. See Mutiny Act, 
1869, s. 59, and Army (Annual) Act. The number of the Marines was not mentioned 
in the preamble to the Marine Mutiny Act, and is not mentioned in the Army 
(Annual) Act, possibly because they partly belong to the navy, whose numbers are 
not limited ; see the text of the Army (Annual) Act, below, p. 257. 

(e) Clode, Mil. Forces, i. 89. 

(/) Provisions for the release from custody of criminals pardoned on condition of 
enlisting were contained in the Mutiny Act of 1702 (1 Ann. stat. 2, c. 20, s. 50), and 
repeated in subsequent Acts to 1711. The impressment of persons having no settled 
mode of living was allowed by Acts passed between 1703 and 1711 (2 & 3 Ann. c. 13, 
3 & 4 Ann. c. 10, 4 & 5 Ann. c. 21, 6 Ann. cc. 17, 48, 7 Ann. c. 2, 10 Ann. c. 12, in the 
Record Edition of the Statutes), and again by Acts of 1744 (17 Geo. II, cc. 15, 26), 1745 
(18 Geo. II, c. 10), 1756 (29 Geo. II, c. 4), 1757 (30 Geo. II, c. 8), 1778 (18 Geo. Ill, c. 53), 
and 1779 (19 Geo. Ill, c. 10). In 1758, the Court of King's Bench discharged a man 
improperly pressed under the Act of 1757, Rex v. Kessel, Burrow's Rep. i. 637 ; and 
Grose, Mil. Antiq., i. 98, note (t) records the bad results of the Act of 1779. Provisions 
were made for the release of insolvent debtors from custody on condition of enlisting 
or finding persons to serve in their places in 1696 (7 & 8 Will. Ill, c. 12, s. 14), 1702 
(1 Ann. c. 19), and 1703 (2 and 3 Ann. c. 10). See also 1 Geo. Ill, c. 17, s. 57. See 
Clode, Mil. Forces, ii. 8-19, 48-55, 587 ; Reports on Recruiting, Parliamentary 
Papers, 186], Vol. xv. ; and 1867, Vol.xv. ; Appendix by Mr. Clode. 

(g) For the history of enlistment since 1660, see Clode, Mil. Forces, ii. ch. xv. 
and the Parliamentary Papers mentioned in note (/ ) supra. 



Mode of Raising Troops siiice 1660. lf>7 

would otherwise have enlisted in the army. Since 1802, the policy Ch. IX. 
has been to encourage enlistment from the militia into the army 
in time of war (a). 

39. In time of war, since the Revolution in 1688, the old system Contracts to 
of contract has to some extent been reverted to, and troops have s^bse-"* 01 " 3 
been raised by an agreement between the Crown and some noble- quently to 

man or gentleman, who has undertaken to raise a corps on condition ,! ie ^ ev , 
c .LI c 11 j.-\ ic /7\ tion in 1688. 

or receiving the nomination of all or some of the omcers (L>). 

40. Even in time of peace, the mode of raising troops down to System of 
1783 was by a species of contract between the Crown and the *' 
colonel, who received from the Crown a beating order, enabling orders, 
him to raise recruits, and was held responsible for enlisting sufficient 
recruits to raise and keep up the regiment to its proper numbers. 

The sums for recruiting expenses and for pay and clothing were 
issued to him in gross ; and, subject to certain limitations as to the 
amount of bounties, he and his officers made their own bargains 
with the recruits (c). 

41. The sums for recruiting expenses in each regiment were Mode of 
carried to a fund called the stock purse, the accounts of which were exnenses 8 of 
made up annually, and the surplus (if any) was handed to the recruiting, 
captains of the companies. The commission to a major or colonel 
appointed him also to be a captain of the regiment, so that he 

had a company of which he shared the profits, while it was com- 
manded by a captain-lieutenant. The balances, however, were 
seldom large ; and when vacancies became numerous from losses 
on service or other causes the cost of recruiting exceeded the allow- 
ance, and the officers were liable to heavy expenses, from which 
they were not unfrequently relieved by extra allowances. One 
survival of this system was the extra allowance made to the 
senior colonel and senior major (d). 

42. Under the above system the officers had a pecuniary interest Pecuniary 
in keeping down the expense of recruiting, both by obtaining men o^era^n* 
cheaply, and by prolonging the service of men enlisted, and so system, 
avoiding the necessity of obtaining recruits in their places. Fraudu - 

lent re-enlistment defrauded the captain, and as early as 1689 this 
offence was by the Mutiny Act made punishable with death (e). 
At the same time the system held out great temptations to 
frauds in mustering and drawing pay for non-effective men as 
effective, which, though restrained by provisions of the Mutiny 
Act, continued to prevail until the pecuniary interest of officers in 
the pay of the men ceased (/). 

43. The above system was abolished in 1783 (g), and recruiting Abolition of 
has ceased to be a matter of pecuniary interest to the officer, and is 

I carried on by recruiting officers acting under the Director of 
Recruiting and Organisation in accordance with orders of the 
Secretary of State (h\ and the expenses are paid directly by the 
Crown. Of late years the payment of bounties has been dis- 
continued, but the power to issue them in times of emergency is 

(a) The various difficulties which arose, and the expedients resorted to to remove 
them, are detailed in Clode, Mil. Forces, i. ch. xiv. See the Parliamentary Papers 
mentioned in note (/), p. 156. 

(b) This system was known as that of "raising men for rank," see Clode, Mil. 
Forces, ii. 5. This system was resorted to in 1854, in the Crimean war. 

(c) Clode, Mil. Forces, i. 74, 105, ii. 2-6. 

(rf) Clode, Mil. Forces, ii. chap, xv., and Appendix, note (WW), p. 568. 

(e) 1 Will. & Mar., sess. 2, c. 4, s. 1 ; Clode, Mil. Forces, ii. 3. 

(/) Clode, Mil. Forces, ii. 8-10. 

(g) By 23 Geo. III. c. 50, known as "Burke's Act." 

(A) Clode, Mil. Forces, ii. 10, 20, 55. The Enlistment Act. 1870, 33 & 34 Viet. c. 67, eon- 

Iferred statutory power on the Secretary of State to issue orders. This is re-enacted 
in the Army Act, s. 93. 



158 



HISTORY OF THE FORCES. 



Ch. IX. 

Term of 
service. 



Army 

Service Act, 
1847. 



Army En- 
listment 

Act, 1867. 



Army En- 
listment 
Act, 1870, 
and 
Reserves. 



Govern- 
ment of 
Army since 
1660. 



retained. Ordinarily, a small pecuniary reward is given to recruiters 
and recruiting agents for each recruit raised and approved. 

44. The term of service, after it ceased on the introduction of 
the standing army to be for a particular war only, has varied con- 
tinually. As a general rule, until the year 1847, the term of service 
of men enlisted in time of peace was for life ; but whenever the 
exigencies of war required additional troops, recourse was had 
to enlistment for a limited term of years (a). 

45. In 1847 was passed the Army Service Act, which, as 
amended in 1849, limited first engagements to ten years for 
the infantry and twelve for the cavalry or artillery, but allowed 
re-engagements for such further periods as would make up a total 
service of 21 or 24 years, as the case might be ; and a soldier, with 
the approval of the military authorities, might continue his service 
after the 21 or 24 years, until he gave three months' notice of his 
wish to be discharged (6). During the Crimean War (1855) and 
Indian Mutiny (1858) power was given temporarily to the Crown 
to enlist and re-engage for shorter periods, and also to re-engage 
men in the cavalry and artillery for a period making up 24 years' 
service (c). 

46. By the Army Enlistment Act, 1867 (d), first engagements were 
to be for 12 years in the infantry as well as in the cavalry and 
artillery, with power to re-engage for such a period as would make 
up 21 years' service, whether in the infantry, the cavalry, or the 
artillery, and the provision as to a soldier continuing in the 
service after 21 years, until he gave three months' notice of his 
wish to be discharged, was re-enacted. 

47. These provisions continued until the Army Enlistment Act, 
1870 (e), when the system known as the short service system was 
introduced for the purpose of securing a body of reserves. 

The Army Eeserve had been established in 1867 to consist of 
men enlisted from soldiers serving, or having served, in the army, 
and to be a separate body with their own officers. The Act of 
1870 practically altered its character, and the Reserve Forces 
Act, 1882, has made corresponding alterations in the law. 

The Militia Reserve was also established in 1867, and was, with 
minor differences, the same as that which may be raised under 
the present Act (/). 

48. The government of the Army since 1660 is dealt with in' 
Chapter II ; it may, however, be observed here that when the 
army became a constitutional army, that is, dependent on the 
consent of Parliament for its maintenance, the obligation to serve 
was allowed to be enforced by courts-martial Avith military pro- 
cedure, and not merely as before, by the civil courts. The power 
to govern the army, as mentioned above, is annually given by 



(a) Under several Acts in the time of Anne and Geo. II, and also under the 
Acts for impressment before referred to, the term of service was for a limited term 
of years. After 1829 men were enlisted for life only, and this continued until 1847. 

(b) 10 & 11 Viet. c. 37 ; 12 & 13 Viet. c. 73. The power of cavalry and artillery to 
re-engage for 12 years, making a total of 24, was repealed by the Act of 1849. 
Section 1 of the first Act limited the first engagement to a maximum of 10 and 12 
years respectively, but the words in the schedules as to the mode of filling up the 
attestation paper were construed to prevent an enlistment for any shorter period 
than the above terms. See the preamble to 18 & 19 Viet. c. 4. 

(c) 18 & 19 Viet. c. 4 ; continued by 21 & 22 Viet. c. 55. 

(d) 30 & 31 Viet. c. 34. 

(e) .>3 & 34 Viet. c. 67 ; the provisions re-enacted in Army Act are stated in ch. x. 

( /) Eeserve Forces Act, 1867, 30 & 31 Viet. c. 110 ; Militia Eeserve Act, 1867, 30 & 31 
Viet. c. Ill, amended by 33 & 34 Viet. c. 67 ; 34 & 35 Viet. c. 86 ; Mutiny Act, 1878, 
s. 107 ; 42 & 43 Viet. c. 32, s. 5. 



Mode of Raising Troops since 1660. 159 

Parliament ; but when given is exercised, as in the navy and civil Ch. IX. 
service, by the Crown alone. The manner in which that power is 
exercised is constitutionally subject, like the exercise of other prero- 
gatives, to the advice of the ministers of the Crown, of whom the one 
particularly responsible for the army is one of the principal Secre- 
taries of State. 

49. With respect to the payment of the army, the annual Finance of 
sanction of the army by Parliament removes the old difficulties, tne arm y- 
as Parliament grants the money for its maintenance. But the 
existence of a standing army rendered necessary a permanent 
machinery for administering that money. The history and nature 

of that machinery is hardly within the scope of the present 
work, and therefore a brief statement only can be made (a). 

50. In the case of the army, as in that of the civil departments Grant of 
of Government, Parliament grants the necessary money on estimates money by 
submitted by the Crown, and the money granted is expended by the 
Crown, subject to control and audit on the part of Parliament (6). 

51. The pay of the soldiers of each regiment was formerly issue of pay. 
issued to the colonel by the Paymaster-General (a civil officer, and 

often a member of Parliament), and his subordinates, who were 
civilians. It is now practically issued by the Paymaster-General 
and disbursed through the captains of companies, each of whom 
keeps an account with the men of his company. 

52. The clothing of each regiment used to be supplied by the Clothing, 
colonel, according to a pattern selected by a clothing board, and was 

paid for by him out of his allowance for " off-reckonings " ; but 
since 1854 the clothing has been supplied direct by the clothing 
department. 

53. The money granted for military stores was formerly expended Military 
by the civil part of the Board of Ordnance, a department which stores, 
dates back before the Restoration, and of which the chief was 

the Master-General of the Ordnance, often a Cabinet Minister. 

54. The money granted for barracks, after being for a time Barracks, 
expended under a special barrack department, which was at first of 

a purely military character, and afterwards partly civil, was 
eventually transferred to the Board of Ordnance. 

55. The money granted for provisions and transport was expended Provisions 
through the Commissariat, who were civilians and officials of the and trans - 
Commissioners of the Treasury. From 1704 to 1836 there were p 
other civil officers, called Controllers of Army Accounts, whose 

duty it was to examine and check army accounts and contracts, 
and to report to the Treasury on frauds and abuses. One of 
them was sometimes present with the army. Their office was in 
1836 merged in the Board of Audit. 

56. For many years, besides the expenditure of the sums Army extra 
which were voted by Parliament upon estimates, there were ordinaries. 
expended large sums known as "army extraordinaries," which 

began with extraordinary expenses which could not be foreseen 
when the estimates were submitted to Parliament ; but the system 
became an abuse, and was ultimately abolished in 1836. While it 
existed, the money was expended at first entirely by military 
officers, but during the present century partly by military officers 
and partly through the Commissariat or other civil officers. 

157. The office of Secretary at War dates from the reign of secretary at 
Charles II and began as that of a private secretary to the ^ar. 

(a) For a fuller account, see Clode, Mil. Forces, chs. vi, vii, xxi, xxiii, on which 
the following summary is founded. 
(&) For early instances of this control, see Forster's Life of Sir J. Eliot, i. 158. 



160 



HISTORY OF THE FORCES. 



Ch. IX. 



Com- 
mander-in 
Chief and 
Judge 
Advocate- 
General. 



Secretary of 
State for 
War. 



Sovereign in military matters. This officer afterwards usually held 
a seat in Parliament as one of the Ministry. His position and. 
duties were vague, but he undoubtedly was a civil officer, and 
had, especially after 1783 (Burke's Act), great control over the 
financial and other civil administration of the army ; after 1783 he 
was responsible for the estimates of military expenditure submitted 
to Parliament ; but he had no direct control over the artillery or 
engineers, or over the materiel of the Force. He was, however, 
subordinate to the Cabinet, and especially to the third Secretary 
of State, when that office was created (a). The duties of the office of 
Secretary at War were taken over by the Secretary of State in 1855, 
and the office was abolished in ] 863 (b). 

58. By the side of the civilian officers above-mentioned there 
was the purely military administration, which remained under 
the direction of the Sovereign as Commander-in-Chief, assisted by 
a board of General officers, till the establishment of the office of 
the General Commanding-in-Chief in 1793 (c). The administration 
of military law was, however, checked by the Judge Advocate- 
General, a Privy Councillor, and usually a member of Parliament 
and one of the ministers of the day, who advised the Sovereign 
on the legality of the proceedings of courts-martial (d). The office 
of Judge Advocate - General, having ceased to be paid, was, in 
1892, made non-political, and was, from that date down to 1905, 
held by the President of the Probate, Divorce, and Admiralty 
Division. In that year, on a new appointment being made to the 
office, the position of the Judge Advocate-General was considerably 
altered. He is now a permanent official under the orders of, and 
acting as legal adviser to, the Secretary of State ; he is no longer a 
Privy Councillor, nor does he advise the Crown directly. 

The office of Commander-in-Chief ceased to exist in the early 
part of 1904, and the Patent creating the Army Council (February, 
1904) (e), transferred to that body among other powers the 
powers theretofore exercised by the Commander-in-Chief under 
the Royal Prerogative. 

59. At the end of the eighteenth century, a third Secretary- 
ship of State (/) was created, the holder of which was to have a 
general superintendence of the army and the colonies. During 
the peace after 1815, when the army was less important, and 
the colonies grew more important, the colonial part of the work 
absorbed most of the Secretary of State's attention. The outbreak 
of the Crimean War again called greater attention to the army, [ 
and in 1854 a new Secretary of State was created, and shortly | 
afterwards the whole civil administration of the army was placed 
in his hands. The powers and duties of the Board of Ordnance 



(a) See para. 59 below, and Clode, Mil. Forces, chaps, iv., xxi. 
(6) 26&27 Vict.,c. 12. 

(c) See Clode, Mil. Forces, chap. xxvi. The Sovereign is Commander-in-Chief, 
unless the office is granted away. The Duke of Marlborough, in Queen Anne's reign, 
was appointed Commander-in-Chief, and commissioned officers by his own authority. 
The Duke of Cambridge was appointed Commander-in-Chief in 1887, but had no 
power under the Patent to issue commissions; and neither Lord VVolseley, who I 
succeeded the Duke of Cambridge as Commander-in-Chief in 1895, nor Lord .Roberts. I 
who succeeded to the office in 1901, had power to issue commissions. In India there' 
is a Commander-in-Chief, but without power to commission officers, except tem- 
porarily, until the King's pleasure is taken. 

(d) Clode, Mil. Forces, chap, xxvii. 

(e) See para. 59A below. 

(/) All the Secretaries of State have equal powers, so that, though in practice! 
different Secretaries of State administer different departments, technically there is 
no distinction between them. A third Secretary of State had been created in 1768, 
but the office was abolished in 1782 by 22 Geo. Ill, c. 82. It was, however, revived 
in 1794 ; Sir Erskine May, Const. Hist., iii. 360 ; Clode, Mil. Forces, ii. 320. 



JJoJe of Raisinj Troops since 1(560. 161 

and of the Secretary at War were transferred to him, and the Ch. IX. 
commissariat officials, and also the Paymaster-General, so far as 
concerned the army, were also placed under his orders (a). In 
1858 the commissariat officials were made military officers, subject 
to the direction of the General commanding the force to which they 
were attached. But whether the officials engaged in the admini- 
stration and discipline of the army are civil or military, the 
Secretary of State for "War, a member of one of the Houses of 
Parliament and a Cabinet Minister, is responsible for the acts of 
all of them, and is the constitutional and responsible adviser of 
the Crown in all questions connected with the army. The ultimate 
responsibility of the Secretary of State was in no way affected by 
the reorganisation of the War Office and creation of the Army 
Council in 1904. 

In 1870 the transfer of the officers who exei'cised the military 
administrative functions from the Horse Guards to the War Office 
brought every branch of army administration under the direct and 
immediate control of the Secretary of State. The actual army 
administration was divided between the officer Commanding-in- 
Chief, the Surveyor-General of Ordnance, and the Financial Secre- 
tary. In 1888 (b) the Commander-in-Chief became solely responsible 
to the Secretary of State not only for the efficiency of the ni3ii 
but also of the materiel, the responsibility for all accounts, 
contracts, and manufactures remaining with the Financial Secretary. 
This concentration of military responsibility in the Commander-in- 
Chief was abolished in 1895 (c) and divided between (1) the 
Commander-in-Chief, who retained the responsibility for general 
command over the military forces at home and abroad, and the 
general supervision of the military departments of the War Office ; 
(2) the Adjutant-General, who was responsible for the discipline and 
training of the troops, and for recruiting and discharging; ('3} the- 
Quartermaster-General, who had direct charge of the food, forage, 
quarters, fuel, and transport of the army, and of the pay depart- 
ment ; (4) the Inspector-General of Fortifications, who had charge 
of barracks, fortifications, &c., and of the engineer services ; and 
(5) the Director-General of Ordnance, who issued demands for, 
inspected, and had custody of warlike stores and equipment, dealt 
with patterns and inventions, and administered the Army 
Ordnance Department and Corps. Each of these five officers 
was directly responsible for his department to the Secretary of 
State. 

A further change was made in 1901 (d), when the Military 
Depaitment was divided into four, instead of five, departments, the 
Adjutant-General being made subordinate to the Commander-in- 
Chief, while the Inspector-General of Fortifications, the Quarter- 
master-General, and the Director-General of Ordnance remained in 
the same position as under the Order of 1899. 

59A. The question of the organisation of the Army and the Army ^ 
War Office again came to the front on the conclusion of the recent 
war in South Africa, and in 1904 (following the lines of the report 
of the War Office (Reconstitution) Committee (e)) the administration 

(a) See 18 & 19 Viet. ce. 10. 11 ; 26 & 27 Viet. c. 1?. 

(5) Orders in Council of 29th December, 1887, and 21st February, 1888. 

(c) Order in Council of 21st November, 1895. An Ordsr in Council of the 7th 
March, 1899, superseded the Order of 1895, but substantially reproduced its 
provisions, except that the direction of Army Factories was transferred to the 
Ordnance Branch, subject to the financial control of the Financial Secretary. 

(d) Order in Council of 4th November, IPi'l. 

(e) Parliamentary Papers, 1904. Cd. 19tM. 

(M.L.) L 



162 



HISTORY OF THE FORCES. 



Ch. IX. 



Audit of 
military 
accounts, 



of the Army was placed in the hands of an Army Council, created 
by Letters Patent of the 6th February, 1904, which vested in that 
Council all the prerogative powers of the Crown in relation to the 
Army which had theretofore been exercised by the Secretary of 
State, the Commander-in-Chief, and other principal officials. 

The Council as so constituted consists of seven members, viz. : 
the Seci'etary of State, four Military Members (the Chief of the 
General Slatf, the Adjutant-General, the Quartermaster-General, 
and the Master-General of Ordnance), a Finance member and a 
Civil member. 

The Secretary of State remains responsible to the Crown and 
Parliament for all the business of the Council, while under him the 
business is divided up as follows : The military members are 
responsible for the administration of so much of the business 
relating to Army organisation, disposition, personnel, armament 
and maintenance as is assigned to them or any one of them by the 
Secretary of State ; the Finance member is charged with Army 
finance, and the Civil member is responsible for the non-effective 
votes. The Secretary of State may assign any other business either 
to the Finance member or the Civil member. The Finance Member 
is assisted by the Directoi -General of Army Finance, who allows and 
pays all moneys for Army services, audits all cash expenditure, and 
prepares the accounts of that expenditure for Parliament (a). 

In addition to the above officials, there is an Inspector-General 
of the Forces, who acts under the orders of the Army Council, to 
whom he is charged with reporting as to the training and efficiency 
of the troops, the readiness and fitness of the Army for war, and 
generally on the practical results of the policy of the Council. 

60. The audit of military accounts has remained independent of 
the Secretary of State, and is now conducted on behalf of the 
House of Commons by the Audit Department under the 
Controller-General of the Receipt and Issue of His Majesty's 
Exchequer and the Auditor-General of the Public Accounts, 
commonly called the Controller and Auditor-General. 



Periods of 
history of 
militia. 



General and 

local 

militia. 



First period. 
Organisa- 
tion of 



Militia. 

61. The history of the militia, since the Restoration in 1660, 
divides itself into four periods : (1) from 1660 to 1757, (2) from 
1757 to 1815, (3) from 1815 to 1852, during which the militia was 
practically in abeyance, and (4) from 1852 to the present time, 
during which the volunteer militia has existed. The militia, 
after a general sketch of its history during these periods, will be 
treated under the same three heads as the army, namely : Raising, 
Government, and Payment. 

62. The militia, commonly so called, is the general or regular 
militia, as distinguished from the local militia which was established 
at the beginning of the last century, and which, though in abeyance, 
might still legally be raised. At the beginning of the nineteenth 
century also several Acts were passed relating to forces other than 
the regulars and militia, which will require notice (6). 

Although the feudal levy was abolished in 1660, the liability 
to serve in the general levy has never been extinguished (c), and 

(a) Orders in Council of 10th August, 1901. I 

('j) As to these Acts and the local militia, see para. 101, et seq. 

(c) The Act 4 & 5 Phil. & Mar. c. 3 (for musters) was not repealed until 1863, when 
it wfc.s repealed as obsolete by the Statute Law Revision Act (20 & 21 Viet. c. 125), 
with wide savings as to its effect. 



Militia General Sketch of History. 163 

remains not only in constitutional theory, but also in the statutory Ch. IX. 
and practical form of liability to serve both in the general and the m ; litia on 
local militia. Restoration 

63. The command of the trained bands, or militia, and the in 166 - 
disposal of their arms, and the appointment and removal of the 
lieutenants of counties had, as before mentioned, formed one of 

the principal subjects of dispute between Charles I and the Long 
Parliament, in the course of which the name "militia" came into 
general use (a). On the Restoration, therefore, it was necessary 
that these questions should be dealt with ; and a Bill for settling 
the militia was introduced into the Commons in the Parliament by 
which Charles II was recalled, but met with great opposition, 
*' because there was martial law provided in it " (b). Consequently, 
though the feudal levy was abolished, Parliament was dissolved 
before any militia Bill could be passed. In the next Parliament 
the question was at once taken into consideration, and an Act 
was passed (c) to legalise for a year the training of "the militia and 
Lind forces" under the lieutenants of counties, to whom 
Charles II had in the meanwhile issued commissions. 

64. In the following year (1662) an Act was passed " for Acts passed 
ordering the forces in the several counties in the kingdom " ; and lbbw ~ ' " 
by this Act, as amended by an Act passed in 1663, the militia 

was at length organised, and the trained bands, except in the 
City of London, were ordered to be discontinued (d). Further 
pi'ovision was made for the new force by Acts of the subsequent 
reigns (e), and it was called out in 1690 on the occasion of the 
French invasion, and again during the rebellions of 1715 and 
1745 ( f). 

65. The rebellion of 1745 brought into notice the general 
inefficiency of the force ; and in 1756 attention was called by a 
panic as to a French invasion, and by the introduction of Hanoverian tion of 
troops, for which the apprehended invasion had been made an 
excuse, to the necessity of strengthening the national defensive 1745. 
forces. Accordingly, in 1757 (rather against the will of the 
Ministers, and only for a period of tive years) an Act was passed 

ly which the force was re-organised on nearly the same basis as 
that on which the balloted militia now rests (g). Opposition 
arose in several counties to the execution of this Act, and difficulty 

(a) See above, para. 22. "Militia" seems to have been used as early as 1590 ; see 
Scott, Brit. Army, i. 448 (note), Bacon's Essays, and Raikes' Hist, of the Hon. 
Artill. Compy., i. 10(5, 110, and it is constantly used in Hie reports of the proceedings 
in Parliament in 1610 and 1*541 ; Cobbett, Parly. Hist., ii. ; though Whiteloeke, iu 
1641, speaks of it as " this new word, this hard word"; ibid., ii. 1078; Rushvvorth, 
Historical Collections iii. pt. i. 525 ; Clode, Mil. Forces, i. 31 (note). 

(b) Commons Journals ; Cobbett, Parly. Hi.st., iv. 145. 

(c) 13 Cha. II, stat. 1, e. 6. The preamble refers to the pending Bill for the militia. 

(d) 14 Cha. II, c. 3; 15 Clia. II, c. 4. As to the discontinuance of the trained 
bands in fact, see Clode, Mil. Forces, i. 86. The old power to enlist and levy the trained 
bands in the Cit3 T of London continued unaltered (being saved by the various Militia 
Acts) until 1794', when an Act was passed (34 Geo. Ill, c. 81), for the organisation 
of a militia force in the City. This Act (as amended by 35 Geo. Ill, c. 27), was 
subsequently repealed by36 Geo. Ill, c. 92 ; and that Act, as amended by 39 Geo. Ill, 
c. 82 (see also 42 Geo. Ill, c. 90, s. 153) was in its turn repealed by 1 Geo. IV, 
c. 100, which still remains in force. As to the use of the term "trained bands" in 
the above Acts, see Raikes' Hist, of the Hon. Artillery Company, ii. 146. 

(e) 1 &, 8 Will. Ill, c. 16, which, after being re-enacted by 9 Will. Ill, c. 31, 11 
Will. Ill, c. 14, 12 Will. Ill, c. 8, was made perpetual ; 1 Ann. stat. 2, c. 15, 4 A 5 
Ann. c. 10, 6 Ann. c. 28, 10 Ann. c. 33, 1 Geo. I, stat. 2, c. 14, 9 Geo. I, e. 3, 19 
Geo. II, c. 2. 

(/) See preamble to 2 Will. & Mar. sess. 2, c. 12, and 7 Geo. II, c. 23. Lord Mahon, 
Hist, of England, iii. 398-422. 

(r/) 30 Geo. II, c. 25, amended by 31 Geo. II, c. 26, 32 Geo. II, e. 20, 33 Gee. II, 
cc. 22, 24. See Clode, Mil. Forces, i. 39-42 ; Cobbett, Parly. Hist , xv. 782 ; Lord 
Mahon, Hist, of England, iv. 133. 

(M.L.) L 2 



164 



HISTORY OF THE FORCES. 



Consolida- 
tion of 
Militia 
Acts. 



Ch. IX. was experienced in obtaining officers (a) ; and several Acts were- 
subsequently passed for the purpose of enforcing the execution of 
the law. Progress was, however, made, and the force was em- 
bodied in the year 1759 (t>). 

66. The Acts relating to the Militia were consolidated in 1761 
(c\ and again in 1786, when the greater number of the regiments; 
had been raised (d\ and the utility of the force was emphatically 
recognised by Parliament in the preamble to the consolidating" 
Act (e). The Acts were again consolidated in 1802, after the- 
peace of Amiens, by 42 Geo. Ill, c. 90, which Act, as subsequently 
amended (/), is still in force as regards the ballot. Between 1802' 
and the peace in 1815, numerous additional Acts were passed with- 
respect to the militia, some of which were of a permanent character, 
but the greater number were temporary measures, and had reference- 
either to the relations between the militia and the other forces then? 
raised under certain special Acts, or to enlisting men for the militia 
by beat of drum, or to enlistment from the militia into the army (g) 
Except in the years 1830 and 1831 (/;), a ballot for the militia does 
not seem ever to have been actually held since 1810 (?'). A motion- 
in Parliament in 1813 to suspend the ballot was defeated, and iia 
1814, on a motion in relation to the disembodiment of the militia,, 
reference was made to the hardship of keeping balloted men away 
from their families (_/). 

67. After the peace of 1815 the militia was allowed practically 
to fall into abeyance, although the permanent staff were main- 
tained. The first step was to allow the annual training to be 



Third 

period, 

1815-1852. 



(a} Clode, Mil. Forces, i. 30 ; Lord Mahon, Hist, of England, iv 334. 

(b) Clode, Mil. Forces, i. 40. 

(c) By 2 Geo. Ill, c. 0, which was at first enacted for seven years only, but was 
made perpetual by 9 Geo. Ill, c. 42. It was amended by 4 Geo. Ill, c. 17; 
5 Geo. Ill, cc. 34/36; 6 Geo. Ill, c. 30 ; 7 Geo. Ill, cc. 15, 17 ; 9 Geo. Ill e. 42; 
11 Geo. Ill, c. 32; 16 Geo. Ill, c. 3 ; 18 Geo. Ill, cc. 14, 59; 19 Geo. Ill, cc. 72,, 
76 ; 20 Geo. Ill, cc. S, 44 ; 21 Geo. Ill, cc. 7, 18 ; 22 Geo. Ill, cc. 6, 62 ; 24 Geo. Ill, 
sess. 1, c. 13. 

(rf) In the circular of 30th April, 1833 (printed in Clode's Militia Act, 1875), the 
regiments are described as having been raised as follows : 47 before the peace of 
1763, 22 between the peace of 1763 and the peace of 1783, and 21 for the revolutionary 
war. This circular announced their precedence as settled by lot. 

(e) See Clode, Mil. Forces, i. 43. The Act of 1786 (26 Geo. Ill, c. 107) was amendecT 
by 33 Geo. Ill, c. 8 : 34 Geo. Ill, cc. 16, 47 ; 35 Geo. Ill, e. 83 ; 38 Geo. Ill, c. 55 ;. 
39 Geo. Ill, cc. 90, 106; 39 & 40 Geo. Ill, c. 1 ; 42 Geo. Ill, c. 12. In addition to 
these Acts, several Acts were passed relating to the supplementary militia, i.e., 
an addition to the militia above the quota, and also Acts relating to the militia 
of particular localities which still have separate militia corps, namely 

(1) The City of London, 34 Geo. Ill, c. 81, and 35 Geo. Ill, c. 27, which were con- 
solidated by '36 Geo. Ill, c. 92, and that Act as amended by 39 Geo. Ill, c. 82, was 
saved in 1802 by 42 Geo. Ill, c. 90, s. 153, but was repealed in 1820 by 1 Geo. IV, 
c. 100, which is still partly in force. See Militia Act, 1882, s. 49. 

(2) The Militia in the Stannaries known as the "Kegiment of Miners," 38 Geo. Ill, 
c. 74, and 42 Geo. Ill, c. 72, the latter of which iccites that a great length of time 
had elapsed since any commission had issued to the Warden of the Stannaries to 
array, arm, and exercise the miners. This Act is still partly in force. See Militia- 
Act,' 1882, s. 49. 

The separate Militia of the Tower Hamlets (37 GPO. Ill, cc. 25, 75) was merged 
the Militia of the County of London by the Local Government Act, 1888, s. 91. 

(/) See especially 43 Geo. Ill, c. 50; 51 Geo. Ill, c. 118; 15 & 16 Viet. c. 50; 
23 & 24 Viet. c. 120. 

(g) See 43 Geo. Ill, c. 10, c. 19, c. 47, c. 50, c. 100 ; 44 Geo. Ill, c. 54, s. 16, c. 56 : 
45 Geo. Ill, c. 31 ; 46 Geo. Ill, c. 91, c. 140; 47 Geo. Ill, sess. 2, e. 57, c. 71; 4$ 
Geo. III. c. 4, c. 53; 50 Geo. Ill, cc. 24, 25; 51 Geo. Ill, c. 17, c. 20, c. 118, c. 
128; 53 Geo. Ill, c. 81 ; 54 Geo. Ill, c. 11 ; 55 Geo. Ill, c. 65, c. 168. As to these 
Acts, their reasons and effect, see Clode, Mil. Forces, i. 237. Besides the above, 
there were Acts relating to Scotland and Ireland. 

(A) See note (l>) on p. 165. 

(V) See Mr. Clode's evidence and App. XVII to report of Mr. Stanley's Militia 
Committee, 1876 (Par). Paper, 1877, C. 1654). 

j) Clode, Mil. forces, i. 190-299 ; Annual Register, 1813, p. 207. 



Nude of Raising Militia. 1G5 

suspended by Order in Council (a). Then, from 1829 to 1865, an Ch. IX. 
Act was passed annually suspending all proceedings for raising the 
militia by ballot, unless ordered by Order in Council, and the Act 
of that year has since been annually continued by the Expiring 
Laws Continuance Act (b). 

68. In 1848 some excitement was felt with respect to the Fourth 

military position of the country in consequence of the great increase P enod - 

f " T? mi Ke-organi- 

oi armaments on the Continent, particularly in France. ine sationof the 

subject was mentioned in Parliament, and the Prime Minister militia in 
*(Lord John Russell), in making his financial statement in 1848, 
expressed his intention of introducing a Bill for re-establishing the 
militia. Nothing, however, was done until 1852, when he proposed 
to reorganise the local militia, but this proposal was rejected by 
"the House of Commons, in favour of an amendment (proposed by 
Lord Palmerston) to reorganise the regular militia. This vote led 
to a change of Ministry, and' the next Ministry, of Lord Derby, 
introduced a Bill for reorganising the regular militia, which was 
'ultimately passed into law (c), and ever since the militia has been 
raised by voluntary enlistment. The militia law was amended 
from time to time between 1852 and 1875 by Acts, some portions of 
"which applied to the volunteer militia, and others only to the 
force when raised by ballot (d). 

69. In 1875 the enactments which related to the volunteer Militia Act, 
militia, and also those which related to the organisation, command, 1875 - 
government, and service of the force, whether raised by ballot 

or by voluntary enlistment, were consolidated by the Militia 
Voluntary Enlistment Act 1875 (38 & 39 Viet. c. 69) which has 
<been replaced by the Militia Act, 1882 (45 & 46 Viet. c. 49). Both 
of these Acts left unrepealed those enactments which related solely 
to the raising of men by ballot. 

70. The Act of 1662 followed the old law by requiring owners Raising of 
of property to furnish horses, horsemen, foot soldiers, and arms Act oMei*' 
us specified in the Act, in proportion to the value of their property ; 

and the liability of persons of small property was to be discharged 
-out of a rate levied in the parish for foot soldiers and arms. The 
Act, though not expressly recognising volunteers, enacted that a 
person liable should not be obliged to serve in person, but might 
provide an approved substitute. 

71. In 1757 the mode of raising the men was entirely changed, Alteration 
^^ liability on the part of the county and parish to provide men J^isi'ng 
being substituted for a liability on the part of individuals. A in 1757. 
certain number of men specified in the Act (usually known as the 
quota) were to be raised in each county, subject to certain powers 

-of re-adjustment by the Privy Council. Lists of all men between 
the ages of eighteen and fifty in every parish in each county (except 
those expressly exempted) were to be sent to the lord lieutenant 

(a) First, by a temporary Act, in 1816 (56 Geo. Ill, c. 64), and in 1817 by a perma- 
nent Act (57 Geo. Ill, c. 57), under which orders for suspension were made in 
almost every year. 

(6) 10 Geo. iV, c. 10. Orders in Council directing a ballot were made and put in 
force in 1830 and 1831 (Clode, Mil. Forces, i. 47 ; Parly. Papers, 1834, vol. 42, 
103; Life and Struggles of William Lovett, p. 65; Hansard (1832), x. 376). The 
Act of 1865 is 28 & 29 Viet. c. 46. The number of the permanent staff was reduced 
by the Act of 1829, and again in 1835 by 5 & 6 Will. IV, c. 37, which also provided 
forthe militia stores of a county being transferred to the Ordnance Department. 

(c) 15 & 16 Viet. c. 50. See Hansard's Parly. Debates for the years 1848 and 
1852; Clode, Mil. Forces, i. 46, 305-307. 

(rf) See 16 & 17 Viet. cc. 116, 133 (England); 17 & 18 Viet. c. 13, c. 105 (England) ; 
e. 106 (Scotland) ; c. 107 (Ireland) ; 18 & 19 Viet. c. 19 (Ireland) ; c. 100 ; 22 & 23 
Viet. c. 38 ; 23 & 24 Viet. c. 94 ; c. 120 (England) ; 32 & 33 Viet. c. 13 ; 33 & 34 
\ ict. c. 68 ; 34 & 35 Viet. c. 86 ; 3*3 & 37 Viet. c. 68. 



166 



HISTORY OF THE FORCES. 



Ch. IX. 



Fine for not 

raising 

quota. 



Volunteers 
recognised 
by Act of 
1758. 



Changes in 

system 

during 

nineteenth 

century. 



and the deputy-lieutenants, who were to hold meetings, and ap- 
portion the quota of the county among the different sub-divisions., 
and again sub- divide the quota of each sub-division among the 
parishes in proportion to their population, and then choose- men 
by lot from each parish list up to the number apportioned to that 
parish. Every man so chosen had to serve for three years, or to 
provide a substitute, and vacancies were to be filled from time to- 
time by. a like process of ballot, which was to be repeated every 
three years. The above is practically the existing ballot system, 
although it has been frequently modified in details. Thus, the 
age of men liable to serve has been altered from time to time r 
and is at present, under the Act of 1860 (a), fixed between 18 
and 30. Exemptions also have been added ; as, for instance, the 
exemption of a poor man with more than one child (6). On the 
other hand, the term of service was extended from three years 
to five. 

72. In 1761 the raising of the militia was made compulsory by 
the imposition on counties of an annual fine for not raising the 
quota (c). This fine was at first 51. for each man deficient, at one 
period it was as high as 60/., and is now 101. per man. 

73. Besides the substitutes allowed ever since 1662, the Act of 
1758 enabled a parish to offer volunteers, and if they were 
accepted, to escape to that extent the liability to a ballot. If a 
volunteer so accepted failed to appear and be sworn and enrolled, 
the parish was bound to find another, or to pay out of the rates a 
fine of Wl. (d). The Act of 1758 further empowered captains, on 
the embodiment of the militia, to augment their companies by 
volunteers, and this and the amending Acts enabled lord lieutenants 
of counties to accept, first, single volunteers, and then whole 
companies of volunteers with their officers (e). At the end of 
the 18th century these volunteers developed into a separate force 
under separate Acts. 

74. In 1810, the enlistment in the militia of volunteers by beat 
of drum as supernumeraries, to a number exceeding the regular 
quota, was authorised, and the ballot was only to be resorted to in 
case of a deficiency (/). The militia was thiis a force raised by 
ballot with the subsidiary aid of voluntary enlistment. In 1852, 
however, the system was changed, and the militia became a force of 
voluntarily enlisted men, with the ballot in reserve, as the Act of 
that year empowered the Crown in England to resort to the 



(a) 23 & 24 Viet. c. 120. 

(6) 42 Geo. Ill, c. 90, s. 43. At first Protestants alone were capable of serving; 
this restriction was abolished in 1797 for the supplementary militia (37 Geo. Ill, 
c. 22) ; and in 1802 for the regular militia. 

(c) 2 Geo. Ill, c. 20, and amending Acts, above p. 164, note (c). This was re- 
enacted in 1769 (9 Geo. Ill, c. 42, which Act states that militia had not been- 
raised in some counties), and again on the consolidation of 1786 (26 Geo. Ill, 
c. 107, s. 116, &c.), and at the beginning of the present century, 42 Geo. Ill, c. 90, 
s. 158 ; c. 91, s. 150 (as to Scotland). 

(d) 31 Geo. II, c. 26, s. 17. A parish might practically discharge its liability to 
Drovide militiamen by paying the fine for non-attendance of a volunteer which 
under 31 Geo. II, c. 26, as stated in the text, was 101. per head ; and in 1761 and 
subsequently, parishes were authorised to give bounties out of the rates to volun- 
teers ; this led also to half of the current price of a volunteer being paid out of the 
rates to a balloted man or a substitute ; 2 Geo. Ill, c. 20, ss. 45, 47 ; 42 Geo. Ill, c. 90, 
ss. 42, 122. 

(e) 2 Geo. Ill, c. 20, s. 120 ; 18 Geo. Ill, c. '59, s. S; 9 Geo. Ill, c. 76 ; these 
provisions were not re-enacted in the consolidation of 178ti, but the power was 
renewed temporarily by 34 Geo. Ill, c. 16, which developed the volunteers 
as a separate force. See Clode, Mil. Forces, i. 80 ; and below, para. 110, et seq. 

( f) Clode, Mil. Forces, i. 290-299. Only 797 men were actually raised by ballot,, 
and there were 14,156 substitutes for balloted men. See App. XVII to report 
of Mr. Stanley's Committee on the Militia, 1876 (Parl. Paper, 1S77 C. 1654). 



Condition of Service of Militia. 167 

lialli.it, in case the quota in any county was not raised by voluntary Ch.. IX 
enlistment, and also in case of invasion or imminent danger. In 
1854 Acts were passed which provided for the raising of militiamen 
both in Scotland and Ireland by voluntary enlistment (a). 

The present militia consists entirely of men voluntarily enlisted 
under the directions of the Secretary of State for War ; the 
suspension of the enactments as to the ballot being annually 
continued (see para. 67). 

75. In 1662, the number of men to be raised was not limited Numbers of 
except so far as it depended on the wealth and number of the t! 
persons liable to furnish or contribute to furnish men and horses. 

76. In 1757, the number to be raised was limited by the Act Q u tas 
which fixed the quota to be raised by each county. The quota various Acts 
was altered from time to time ; and in 1797 an addition to the since 1757. 
quota, called the supplementary militia, was made, to last during 

the war, but it was soon merged in the regular militia (b). Under 
the Act of 1802 the Privy Council were to fix the quota every te 
years, guided by the proportion between the number of men liable 
to serve (as appearing from the lists) and the quota fixed by the 
Act, and the Crown had power to increase the quota in time of 
invasion or rebellion. The Acts from 1852 to 1860, re-organising 
the militia, fixed the total number to be raised, with power to the 
Crown to increase it in case of actual invasion or imminent danger 
thereof (c). 

77. The Act of 1871 (now re-enacted in the Militia Act, 1882) jJSSSJIi 
directed that the numbers of the militia should be such as should O f 1871, 
from time to time be provided by Parliament (rf), and such pro- 
vision is in effect made by a vote of the sum required for the pay of 

a specified number of men, and the application of such sum by the 
Appropriation Act of each year. The quotas (which are only required 
in the event of a ballot) are to be fixed by the Privy Council (e) ; the 
existing quota was fixed in 1852, and continues until altered. 

78. Under the Act of 1662 militiamen were liable to be called out Conditions 
for training and exercise, and also in the case of invasion, insur- 
rection, or rebellion. 

79. In 175 1 ? the service of the militia was placed nearly in the Annual 
position in which it remained until 1870, that is to say, the force tramin g- 
was to be annually trained and exercised for a limited time, while in 

case of actual invasion or imminent danger thereof, or in case of 
rebellion, the Crown could order the force, or any part of it, to 
be drawn out and embodied. The period for the annual training 
was originally fixed in the Act, but afterwards left to be determined 
by the Crown ; it must not be less than 21, nor more than 56 days, 
and the Crown can dispense with it entirely. In 1860 a preliminary 
training was required from every militiaman on his first entering 
the force, and this may now be continued as long as six months (/). 

80. The power of embodying the force in cases other than Power to 
those before mentioned, after having been conferred on the Crown eir >boriy. 
at various times by temporary measures (g), lias now been 

(a) 17 & 18 Tict. cc. 106, 107. 

(b) 37 Geo. Ill, c. 3, amended by 37 Geo. Ill, c. 22, and 38>Geo. Ill, cc. 17, 1?, 
19, 55 ; merged in the general militia by 39 Geo. Ill, c. 106. 

(c) 15 & 16 Viet. c. 50; 17 & 18 Viet. cc. 106, 107 ; 23 & 24 Viet. c. 94, ss. 20 & 21. 

(d) 34 & 35 Viet. c. 86, ss. 6, 7, 9, re-enacted by 45 & 46 Viet. c. 49, s. 3. 

(e) 45 & 46 Yict. c. 49, s. 37. 

(f) 23 & 24 Viet. c. 4, s. 14 ; c. 120, s. 19 ; 34 & 35 Viet. C. 86, S. 8 ; see now 45 & 46 
Viet, c. 49, s. 14. 

(g) In 1776, with a view to the suppression of the rebellion in America, embodiment 
was authorised, in case of rebellion in Great Britain or any territories or dominions 
thereunto belonging, by 16 Geo. Ill, c. 3; in 1815 on " the prospect of a war with 



168 



HISTORY OF THE FORCES. 



Ch. IX, permanently enacted. In 1854 (the Crimean War), the Queen was 
authorised to embody the militia whenever a state o war existed 
between Her Majesty and any foreign power (a) ; but in 1870 
the old provisions were superseded by the enactments authorising 
the embodiment in case of imminent national danger or great 
emergency, which were re-enacted in 1882, and are now in force 
(b). Ever since 1757 the law lias required that the cause of 
embodiment should be communicated to Parliament if sitting, or 
declared in Council and notified by proclamation if Parliament is 
not sitting, and that, thereupon, Parliament, if adjourned or 
prorogued, should meet within a limited time, which now is 10 
days (t). 

81. The militia are liable tc serve in any part of the kingdom, 
but not out of it; and under this rule, the English militia were 
originally not liable to serve in Scotland or Ireland. The militia 
must now serve in any part of the United Kingdom (a 7 ). This was 
first provided in 1811 (e), subject to certain restrictions, and then 
in 1859 (/) without those restrictions, which were entirely repealed 
by the Act of 1875. In 1859 a power was given to the Sovereign to 
accept voluntary offers by the militia to serve in the Channel 
Islands and the Isle of Man ; this was extended by the Act of 
1875 to service in Malta and Gibraltar ; and as so extended was 
re-enacted in 1882 (g). A further extension to any part of the 
world was made in 1898. At the same time the Crown was 
authorised to employ militiamen volunteering to serve for not! 
more than one year, whether an order embodying the militia was I 
in force at the time or not(/i). 

83. A fixed term of service was first provided in 1757, and was 



Militia 
liable to 
serve only 
in United 
Kingdom. 



Term of 
service. 



then limited to three years, but afterwards increased to five 
years, at which it at present stands for balloted men. In 1873 
power was given to enlist volunteer militiamen to serve for any 



France," by 55 Geo. III. c. 77 (see Clode, Mil. Forces, i. 48); in 1857 and 1858, on 
the occasion of the Indian Mutiny, 20 & 21 Viet. c. 82 ; 21 & 22 Viet. cc. 4, 86. 

(a) 17 & 18 Viet. c. 13. As to the effect of this on the men already enlisted, see 
Clode, Mil. Forces, i. 46. 

(b) 33 & 34 Viet. c. 68, which did not apply to any man already enlisted, without 
his consent. The authority in this Act to raise additional militia in case of imminent 
"national danger or great emergency was not re-enacted on the repeal of the Act in 
TS75, having been rendered unnecessary by the Act of 1871, declaring that the 
number of the force shall be sueh as may from time to time Le provided by 
.Parliament. The present enact ments are in 45 & 46 Viet. c. 19, s. 18. 

(c) 45 & 46 Viet. c. 49. s. 19. 

(rf) 45 & 46 Viet, c. 49, s. 12, re-enacting 38 & 39 Viet. c. 69, s. 49. The oath for 
balloted men in 51 Geo. Ill, c. 118, s. 1, and for volunteer militiamen in 38 & 39 Viet. 
o. 69, s. 31, specified the area of service, but this being inconsistent with the 
provisions for volunteer service in Gibraltar, Malta, &c., was omitted by 45 & 46 
Viet. c. 49, s. 13. Since 1757 the English militia have been liable to serve in Scotland. 

(e) 51 Geo. Ill, cc. 118, 128; 51 Geo. Ill, c. 114 (Kegimf nt of Miners) ; 53 Geo. Ill, 
c. 132 (Tower Hamlets) ; 54 Geo. Ill, c. 10. See Clode, Mil. Forces, i. 301, 302, as to 
the opposition to the Acts. The principle had been adopted in temporary Acts, as 
in 1798, when some English regiments volunteered to serve in Ireland, and Acts were 
passed by the Parliament of Great Britain to enable His Majesty to accept the 
offer, and by the Parliament of Ireland to provide for the government of the forces 
so employed (38 Geo. Ill, c. 66, continued by 39 Geo. Ill, c. 5 ; 39 & 40 Geo. Ill, cc. 9, 
15; 38 Geo. Ill (I.), c. 46; 39 Geo. Ill (I.), c. 64, ss. 13, 14). And again, in 17v<9 and 
1804 and the following years, when some of the Irish regiments volunteered to serve 
in Great Britain, and Acts were passed to enable His Ma.iesty to accept the offers (39 
Geo. Ill (I.), c. 31 ; 44 Geo. Ill, c. 32, continued by 46 Geo. Ill, c. 31; 47 Geo. Ill, 
sess. 1, c. 6). 

(/) 22 & 23 Viet. c. 38, ss. 1, 2. 

0?) 22 & 33 Viet. c. 38, s. 4 ; 38 & 29 Viet. c. 69, s. ?0 ; 45 & 46 Viet. c. 49, s. 12. 
A similar power had been given temporarily at the time of war in 1813 (54 Geo. 
Ill, cc. 1, 17), in 1855 (18 & 19 Viet. c. 1), and in 1858 (21 & 22 Viet. c. 85). In 
these cases, however, the number was limited to three-louiths of each regiment, 
though the area of service extendfd in the first ease to Europe, and in the second 
and third cases to any place out of the United Kingdom. 

(A) Reserve Forces' and Militia Act, 1898. 



Government of Militia. 169 

period not exceeding six years, and to re-enlist men for a further Ch. IX. 
period not exceeding six years (a). 

83. The Act of 1661, temporarily legalising the militia under Com anrl 
Charles II, referred to the dispute with Charles I as to the com- Lstof 1661. 
raand of the militia, first by its title, in which it was described as 

14 ' An Act declaring the sole right of the militia to be in the king, 
and for the present ordering and disposing the same " ; and also by 
its preamble, which was expressed as follows : " Forasmuch as 
within all His Majesty's realmes and dominions the sole supreme 
government, command, and disposition of the militia, and of all 
forces by sea and land, and of all forts and places of strength 
is, and by the lawes of England ever was, the undoubted right of 
His Majesty and his royal! predecessors, Kings and Queenes of 
England, and that both or either of the Houses of Parliament 
cannot nor ought to pretend to the same, nor can nor lawfully may 
raise or leavy any warr, offensive or defensive, against Hia Majesty, 
}iis heires, or lawful successors" (6). 

84. The Act of 1662(c), which re-organised the militia, while recog- Powers of 
riising by a preamble in identical terms the right of the Crown, ^ante 6 "" 
practically took it away. It required the King under statutory under Act 
power to issue Commissions of Lieutenancy for the different counties of 1662 - 
in England, and conferred on the lieutenants so appointed the chief 
powers in relation to the militia. They were empowered to com- 
mission the officers, raise the men, form 'the regiments, muster and 
exercise them, and in case of insurrection or invasion, to lead the 

forces as well within their counties as in any other counties in 
England. The result of the chief powers being vested in the 
lieutenants of counties was that the militia was regarded as a 
counterpoise of the standing army (d), and as a constitutional 
force under the control of Parliament rather than of the Crown, 
and for this reason was not made subject to military law (e). 

85. A power was indeed reserved to the King to appoint and re- Powers of 
move the officers, and to give directions to the lieutenants as to Crown - 
arraying and dealing with the forces. But the Act of 1757 (/) 
limited this, leaving to the Crown only the power to approve and 
dismiss deputy lieutenants and to dismiss officers, while the local 
character of the force was intensified by requiring the lieutenant? 

of counties and deputy lieutenants and officers to be qualified by 
the possession of landed property in their counties. On the other 
hand, the King was empowered to place the force, when embodied, 
but not during the annual training, under the command of a general 
officer ; and had also power to appoint former officers and soldiers 
of the army to be adjutants and sergeants. 

86. The command of the militia remained in the same position Changes in 
until 1852, with the exception that ex-officers of the army and 1852anfl 
navy were permitted to serve without the property qualification, quentiy. 
After the revival, however, of the militia in 1852, a change was 

(a) 3ti & 37 Viet, c. 63, s. 1 (which uses the old term " enrol ") re-enacted in 1875. 33 
& 39 Viet. c. 69, s. 32, and in 1882, 45 & 46 Viet. c. 49, s. 8 (2). 

(6) 13 Cha. II, stat. 1, c. 6, This preamble, which in terms goes beyond the 
leot the Act, and includes forces besides the militia, is still unrepealed. The rest 
ot the Act was repealed by the Statute Law Revision Act, 1863 (26 & 27 Viet. c. 125). 
J (c) 14 Cha. II. e. 3. 

(d) Clode, Mil. Forces, i. 36, 37. 

(f) See exemption from the Mutiny Act, 1 Will, and Mar., c. 5, s. 7. The pay 
was appropriated by Act of Parliament and not by warrant, and the estimates origi- 
nated with a Committee of the House of Commons. Moreover, only one month's 
pay and therefore one month's service could be obtained without coming to Parlia- 
m j The preamble to the Act of 1802 laid stress on the force being under the com- 
mand of officers having landed property 
(/) 30 Geo. II, c. 25. 



170 



HISTORY OF THE FORCES. 



Ch. IX. 



Powers of 
Lord Lieu- 
tenant 
re-vested in 
Crown by 
Act of 1871. 



Status of 

militia 

officers. 



Provisions 
of Act of 

1881. 



Militia not 
subject to 
Mutiny Act 
at all till 
1757. 



made. The property qualification of the officers was reduced, and, 
after a further reduction in 1854, was entirely abolished in 1869, 
so that the officers ceased to be necessarily connected with the 
county or with the landed interest (a). Moreover, by the Act of 
1852 and subsequent Acts, much larger powers were conferred 
on the Crown, both as to the qualifications and training of the 
officers, and as to other matters concerning the militia (6) ; but any 
detailed notice of these powers is rendered unnecessary by the com- 
plete transfer of the powers of the lieutenants of counties to the 
Crown by the Act of 1871 (c). 

87. In 1871 it was determined to combine the regular and aux- 
iliary forces in one organisation in connection with different terri- 
torial districts. In furtherance of this scheme an Act was 
passed (c), by which the command of the auxiliary forces with all the 
powers of the lieutenants of counties and those of the Lord Lieu- 
tenant in Ireland in relation to any of such forces (except those 
relating to the raising of the militia by ballot) were re-vested in the 
Crown, and declared to be exercisable through a Secretary of State, 
or any officers to whom Her Majesty, with the advice of a Secre- 
tary of State, might delegate such command and powers. The 
same Act also provided that the officers of the auxiliary forces 
should hold commissions from Her Majesty in the same manner as 
the officers of the regular forces ; but a limited right of recom- 
mending persons for first commissions was reserved to the Lieu- 
tenants of counties. 

88. Up to 1882 it was provided by statute that militia officers 
should rank with officers of the regulai forces as the youngest of 
their rank (d) ; militia officers are now not only commissioned like 
officers of the regular forces, but are always subject to military law, 
and they may sit on courts-martial for the trial of offenders be- 
longing to the regular forces, and vice versa (e). 

89. The Army Act, to remove all doubt as to the power of 
command, declared that Her Majesty might make regulations as to 
the persons to exercise command over any part of Her forces, 
including the militia (/). The Militia Act, 1875, and the Eegula- 
tion of the Forces Act, 1881 (re-enacted in 1882), also gave Her 
Majesty complete power to provide for the formation of militia- 
men into regiments or other military bodies, the formation of 
them into corps, and the distribution of the men among the 
corps, and generally for the government of the force (</). 

90. The Act of 1662 authorised Lieutenants of counties to im- 
prison mutineers and soldiers not doing their duties, and to inflict 
small fines or twenty days' imprisonment as a punishment ; but it 
was not till 1757 that the force was made, when embodied, subject 
to the Mutiny Act and Articles of War. Except during embodi- 

(a) 15 & 16 Viet. c. 50, ss. 1-4 ; 17 & 18 Viet. c. 105, s. 31 ; c. 106, ss. 6-11 (Scotland) ; 
c. 107, ss. 5-7 (Ireland) ; 18 & 19 Viet. c. 100 (winch made the qualifications uniform 
throughout the United Kingdom) ; 32 & 33 Viet. c. 13. 

(6) As to appointment of officers, training and bounties to, and pay of men while 
not embodied, 15 & 16 Viet. c. 50 ; 17&18 Viet. cc. 13, 105, 106, 107. As to discharge 
of militiamen, 16 & 17 Viet. c. 13, s. 9 ; 17 & 18 Viet. c. 105, s. 42; c. 106, s. 61 ; 
c. 107, s. 25. As to place and time of training, 22 & 2 Viet. c. 38, s. 8. As to placing 
the force during training under the command of general officers, and attaching 
officers of regulars to the force during training, 32 & 33 Viet. c. 13, ss. 1, 2. 

(c) 34 & 35 Viet. c. 86, s. 6, repeated in 38 & 39 Viet. c. 69, s. 21, and re-enacted by 
4." .t 4ti Viet. c. 49, S3. 4-6 as to general militia, and 3rd sch. as to local militia. 

(d^ 38 & 39 Viet. c. 69, s. 21 . This was provided by the Act of 1757, but omittefJ 
from 45 & 46 Viet. c. 49, as rank is a matter for regulation by the Sovereign. 

(e) Army Act, ss. 50, 175, 178. 

(/) Army Act, s. 71. 

(//) 31 & 39 Viet. c. 69, s. 86 ; 44 & 45 Viet. c. 57 s. 4 ; re-enacted in 45 & 46 Viet, 
c. 49, s. 54. 



Finance of Militia. 171 

ment, the men were subject only to civil fines, for drunkenness, Ch. IX. 
disobedience, absence, &c. In 1761, however, the Mutiny Act 
was applied to the militia when out for training as well as when 
embodied. Men, however, who failed to appear were only liable 
to a fine till 1786, when they became liable in case of embodiment 
to be tried for desertion under the Mutiny Act (a). 

91. Since 1852 the militia has by degrees been brought more Militia 
completely under military law. Thus, in 1854, men who failed to mor^under 
appear at the annual training were declared deserter?, and made liable military law 
to a fine of 101. (b). In 1875, militiamen during their preliminary 3ince 18o2> 
training were made subject to the Mutiny Act by the Mutiny Act of 

that year, and under a subsequent Actof thesame year if they failed to 
appear at the preliminary training were made triable as deserters (',-). 
Militia officers were made at all times subject to military law by 
the Mutiny Act of 1877 (d). The old exemption of militiamen from 
capital punishment during annual training is omitted from the 
present Acts as unnecessary, because desertion and such like military 
offences are not capitally punishable, except on active service (e). 

92. The expense of the militia was in 1662 divided between Payment of 
individuals (owners of property), counties, and parishes on the one $?* es of 

i_i ii ^^< i i ii* TT mrinia. 

hand, and the Crown on the other ; the former provided equip- 
ments, horses, ammunition, &c., and pay for the annual training, 
while the Crown supplied pay in case of embodiment ( f). 

93. In 1757 a different principle was adopted, and a separate Act of 1757. 
Act was passed authorising the issue from the Exchequer and 
application of a sum for the pay, clothing, and expenses of the 
militia, and this Act was continued annually till 1874. The pas- 
sing of this Act, for long merely a formal matter, became entirely 
meaningless after the militia were placed under the command of 

the Crown in 1871, and it was accordingly provided in 1874 that 
the pay and clothing of the militia should be regulated by Royal 
"Warrant, orders, and regulations in the same manner as the pay and 
clothing of the regular forces (</). 

94. The storage of the arms, clothing, and equipments of the Storage of 
militia was in 1757 made a charge on the parishes ; but in 1786 was fo"af 'chared 
transferred to the counties ; and provision was then made for the till 1871. 
permanent staff residing on the spot and taking care of the 

arms. After the change of system in 1871 (K) the counties were 
relieved from this, as well as other charges connected with the 
militia, and by Acts passed in 1872 and 1873 provision was made 
for the purchase of lands and the erection of barracks at the 



() 2 Geo. Ill, c. 20, s. 99 : 26 Geo. Ill, c. 107, s. 98. 
(1) 17 & 18 Viet. c. 105, s. 45 ; c. 106, s. 58 ; c. 107, s. 28. 

|(c) 38 & 39 Viet. c. 7, s. 2 ; 38 & 39 Viet. c. 69, s. 59. 
(d) 40 & 41 Viet. c. 7, s. 2 ; see as to tlie present law, eh. xi, para. 51. 

(e) At one time militia deserters might be sentenced to serve in the regular 
forces, 39 Geo. Ill, c. 106 ; 49 Geo. Ill, c. 90, s. 127, repealed in 1875 ; and 43 Geo. 
Ill, c. 50, s. 5, only repealed in 1882. 

(/ ) Individuals were liable to advance one month's pay ; and the Act provided 
that until this month's advance was repaid no further advance was to be required. 
This led to a difficulty in calling out the militia, which was removed by a tem- 
porary Act, 2 Will. & Mar. sess. 2, c. 12, re-enacted almost annually during the 
reigns of Will. & Mar., and Anne. Similar provisions were again made in 1715, 
1 Geo. I, stat, 2, c. 14. revived in 1723, 9 Geo. I, c. 8, s. 6, and again in 1733, 
7 Geo. II, c. 23, and in 1745, 19 Geo. II, c. 2. The money raised by the county 
was known as "trophy money." 

(ff) 37 & 38 Viet. c. L'9. See also 38 & 39 Viet. c. 69, s. 86. The then existing 
Acts were 31 & 32 Viet, c. 76 ; F.2 & 33 Viet. c. 66 ; and 36 & 37 Viet. c. 84, which 
had been annually continued by the Expiring Laws Continuance Act, and were 
to have effect as a Royal Warrant, until a new Warrant was made. 

(A) By 34 & 35 Viet. c. 86. 



172 HISTORY OF THE FORCES. 

Ch. IX. public expense, and the counties were authorised to transfer 

their storehouses to the Crown, or to sell them (a). 

Billeting. 85- Ever since 1757 the officers and men have been allowed 
during the annual training and during embodiment to be billeted 
like the regular forces, and the permanent staff may be billeted at 
all times. 

Relief of 96. Various enactments were made for relieving out of the poor 

families of ra tes families of militiamen when embodied or out for training ; 
but this system, on the reform of the Poor Law in 1834, was abol- 
ished by the Poor Law Amendment Act of that year (6). 

Enlistment 97. When every parish was obliged to raise a certain number of 
me'nhvto militiamen, the discharge of a militiaman or his enlistment into 
the army, the army necessarily threw on the parish the burden of providing 
another man. The power of discharge was therefore jealously 
watched, and the enlistment of a militiaman into the army was 
either prohibited, or very much restricted. At the same time 
individuals desirous to find substitutes, and parishes desirous 
to avoid a ballot, although forbidden to enlist men by beat of 
drum, competed for recruits with the recruiting officers of the 
regular army, and thus in time of war the bounty for recruits was 
raised to a very high sum (c). 

Act of 1795. 98. In 1795 "a change of policy took place, and subject to certain 
limitations, the enlistment of militiamen in the army was en- 
couraged ; and, in order to replace militiamen so enlisting, militia 
officers were authorised to enlist men by beat of drum (d). 
Acts of 1852 99. Long after this, however, and even after the change of system 
and 1854. in 1852, the old prohibition against the enlistment of militiamen 
in the army remained in force, although with a voluntarily 
enlisted militia the reason had disappeared. On the breaking out 
of war in 1854 prosecutions were instituted against militiamen who 
had enlisted in the army, and legislation was required to enable 
the Secretary at War to relieve from punishment the men who had 
so enlisted (e]. 

Act of 1875. 100. Further legislation authorised enlistment in the army ; and 
by the Act of 1875 the enlistment of volunteer militiamen in the 
army was, as well as their discharge from the militia, placed en- 
tirely under the direction of the Secretary of State for War (/). 
Acts for 101. At the end of the eighteenth and beginning of the last century 

raising various Acts were passed for raising forces to resist the threatened 

torces to _, >, . , -, P ,i T i -T, < 

meetappre- French invasion, which were based on the liability or every man 

hended to aid in the defence of the realm, either by personal service or by 

French , -, ,. / , 

invasion, contributions (g). 
1796-1S12. 

(a) 35 & 36 Viet. c. 68 ; 36 & 37 Viet. c. 68, s. 8 ; 36 & 37 Viet. c. 84. 

(6) See 43 Geo. Ill, c. 47, which consolidated the old enactments, and was repealed 
by 4 & 5 Will. IV, c. 76, s. 60, and by 38 & 39 Viet. c. 69, s. 98. 

(c) The ballot had thus a bad effect on enlistment for the army. See Clode, Mil. 
Forces, i, 289. 

(rf) In 1795, 35 Geo. Ill, c. 83. Such enlistment was also authorised by the Acts 
relating to the supplementary militia, 39 Geo. Ill, c. 106 ; 39 & 40 Geo. Ill, c. 1. The 
Consolidation Act of 1802 (42 Geo. Ill, c. 90) prohibited the enlistment, but authority 
to enlist men was given by a series of Acts from 1805 to 1813. 45 Geo. Ill, c. 31 ; 46 
Geo. Ill, c. 124: 47 Geo.' III. sess. 2, c. 57; 48 Geo. Ill, c. 64; 49 Geo. Ill, c. 4; 
49 Geo. Ill, c. 53, s. 32 ; 51 Geo. Ill, cc. 20, 30 ; 53 Geo. Ill, c. 81 ; 54 Geo. Ill, 
cc. 1, 38. 

(e) 17 & 18 Viet. c. 105, s. 42 ; c. 106, s. 61 ; c. 107, s. 25. 

(/) 23 & 24 Viet. c. 94, s. 17 ; 33 & 39 Viet. c. 69. as. 75, 76. 

(#) 37 Geo. Ill, cc. 4. 24, and as to Scotland, cc. 5, 39. In 1797 a force of provi- 
sional cavalry was to be raised as an augmentation to the militia under 37 Geo. Ill, 
ec. 6, 23, 139 ; 38 Geo. Ill, cc. 51, 94 ; 39 Geo. Ill, c. 23. As to returns of men, provisions, 
&c., 38 Geo. Ill, c. 27 ; 43 Geo. Ill, c. 55. An army of reserve was provided by 43 Geo. 
Ill, cc. 82, 100, 123, and 44 Geo. Ill, c. 56 ; and as to Scotland, 43 Geo. Ill, cc. 83, 124; 
44 Geo. Ill, P. 66 ; and as to Ireland, 43 Geo. Ill, c. 85 ; 44 Geo. Ill, c. 74 ; and as to 
the City of London, 43 Geo. Ill, c. 101 ; 44 Geo. Ill, c. 96 ; the first of which recites 



Account of Local Militia. 173 

102. They were superseded in 1808 by Acts establishing a local Ch. IX. 
militia in England and Scotland. These Acts were amended in the , 
following years (a), and were finally consolidated in 1812. The Us^fng lora 
general provisions of the Acts passed, in that year (b) are still in militia, 
force, though the local militia is in abeyance. 

103. The local militia is in effect the old general levy, as the Account of 
Acts provide for raising a force in each county by ballot, in the same 
manner as under the general Militia Acts, from among men between 

the ages of 18 and 30. The number in each county, including 
any effective yeomanry and volunteers in the county, was 
to be equal to six times the quota fixed for the regular 
militia of the county, but since 1871 is to consist of such 
number of men as may from time to time be provided by 
Parliament (c). A man when drawn in the ballot must 
serve for four years without any power to find a substitute, and 
without receiving any bounty. With some exceptions (such as 
men with previous service, or men with more than two children) 
there are no exemptions from liability to serve. Parishes may pro- 
vide volunteers and pay them bounties out of the rates. The 
counties are liable to an annual fine of 15/. for each man short of 
the quota. 

104. The force is to be annually trained, and may be called out Tr aming, 
for the suppression of riots, and preliminary training may be re- anmbodi 
quired. The force may be embodied in case of invasion or the ment. 
appearance of an enemy on the coast, and in case of rebellion ; 
Parliament is to meet within fourteen days after the order for 
embodiment (d). As regards command, officers, and discipline, the 

local militia is almost precisely in the same position as the general 
militia (<?), and the force whenever called out is subject to military 
law. The property qualification of officers was abolished by 32 
and 33 Viet. c. 13. The expenses were to be paid by the Crown, 
and the storage of arms, which was formerly a county charge, is now 
also borne by the Crown ( /"). 

105. The force was actually raised by ballot and called out for >Tot raised 
annual training until the peace of 1815 (g). In 1813 parts of the since 
local militia were authorised to volunteer for service out of their 
counties with the object of guarding French prisoners (it). After 

that peace the King in Council was authorised (i) to suspend the 
ballot for and enrolment of the local militia, and the force has not 

that the City, notwithstanding their exemption from the liability to provide men 
for military service, have offered to raise the force mentioned in tlie Act. A levy en 
masse was provided for by 43 Geo. Ill, e. 96, amended by c. 120. The first Act recites 
that it is expedient "to enable His Majesty more effectually to exercise his ancient 
"and undoubted prerogative of requiring the military service of all his liege sub- 
"jects in case of an invasion of the realm by a foreign enemy," extended to the 




C. 63), but was never put in force. 

(a) 48 Geo. Ill, c. Ill ; and as to Scotland, c. 150 ; amended by 49 Geo. Ill cc 
40, 48, 2, 129, and 50 Geo. III. c. 25. See Clode, Mil. Forces, i. 325-332. 

(b) 52 Geo. Ill, c. 3S ; and as to Scotland, c. 68. See also the Amendment Acts, 
52 Geo. Ill, o. 116 ; 53 Geo. Ill, cc. 28, 29, and 45 & 46 Viet. c. 4ft, 3rd sched. 

(c) 34 & 35 Viet. c. 8(5, ss. 7, 8, 19, re-enacted by 45 & 46 Viet. c. 49, 3rd sched. 

(d) The Act of 1S70 (33 & 34 Viet. c. 68), which allowed the militia to be embodied in 
case of imminent national danger or great emergency, was repealed by 38 & 39 Viet. 
c. 69, as if it had not applied to the local militia. 

(e) See above, para. 83, et seq., and Militia Act, 1882 (45 46 Viet. c. 49, 3rd 
sched.). The Army Act applies to the local as well as to the general militia. 

(/) It appears to have been transferred to the Crown, as in the case of the general 
militia, by 35 & 36 Viet. c. 68. 

(g) Annual training is mentioned in the Annual Register, 1811, p. 32. 
(K\ 54 Geo. Ill, o. 19 ; Annual Register, 18:3, p. 205. 
(i) By 56 Geo. Ill, c. 38. 



174 



HISTORY OF THE FORCES. 



Ch. IX. 



Militia of 
Scotland 
before and 
under Act of 
1802. 



Militia of 
Ireland. 
First Act 
1715. 



Amending 
Acts. 



since been raised. Orders in Council were made annually under 
the Act up to the year 1832 (a), when they seem to have been 
discontinued, and the Act authorising the suspension was repealed 
as obsolete in 1873 (&). 

106. The early Acts above-mentioned relate only to the militia of 
England. The militia of Scotland was not organised by an Act 
of the Parliament of Great Britain until 1797, though before that 
time corps of Fencibles were raised and embodied (c). In that 
year an Act was passed (d), which as. subsequently amended (e) 
provided for raising a force of militia during the war, by ballot 
among men between the ages of 19 and 30. In 1802 these Acts were 
replaced by an Act (/) providing for the organisation of the 
militia on a basis similar to that on which the militia of England 
was organised by the Consolidation Act passed in that year (g). 

107. The militia of Ireland was first organised in 1715 (A), 
when His Majesty and the Chief Governor were empowered to issue 
to Protestants commissions of lieutenancy and array for counties 
and cities, empowering them to arm and train all Protestants be- 
tween the ages of 16 and 60, who were bound to appear or find sub- 
stitutes ; and in case of insurrection, rebellion, or invasion to serve 
in any part of the Kingdom. His Majesty and the Chief Governor 
were empowered to commission officers and approve of deputy 
lieutenants, but the command of the force was vested in the lieu- 
tenants of counties. Mutiny, non-appearance, and neglect of duty 
were punishable by fine or imprisonment, and the force was not 
made subject to military law. 

108. This Act was amended in 1719 ({), and again in 1745 (A-) 
and, as so amended, was continued from time to time until 1777, 
when it was replaced by an Act (I) which seems to have contem- 
plated the raising of men by ballot, though in point of fact it made 
no provision for raising men otherwise than by voluntary enlist- 
ment, and did not fix any term of service. This Act being found 
insufficient, \vus repealed and replaced in 1793 by an Act (m) which 
provided for raising a force of militia according to quotas fixed in 
the Act, by ballot among men between the ages of 18 and 45, to 
serve for four years. Governors of counties were authorised to 
array and train the force, and to appoint deputies, subject to 
the approval of the Lord Lieutenant ; and His Majesty was em- 
powered to appoint a commandant for each county, who was 
authorised to appoint officers, having property qualifications, sub- 
ject to the approval of the Lord Lieutenant. The force might be 
embodied in case of invasion, &c., and was, during training and em- 
bodiment, subject to the Mutiny Act. The raising of the force was 
made cpmpulsory by clauses imposing a fine of 51. a year on each, 
county for each man deficient, and enlistment in the army was 
prohibited. This Act of 1793 was amended in 1795 (M), and again 
in every succeeding year till the Union of Ireland with Great 
Britain in 1801. 



(a) Clode, Mil. Forces, i. 333, in which 1836 appears to be a misprint for 1832. 
(6) By the Statute Law Revision Act, s. 73, (36 & 37 Viet. c. 91). 

(c) See preamble to 18 Geo. Ill, c. 59, s. 4. 

(d) 37 Geo. Ill, c. 103. 

(?) 38 Geo. Ill, cc. 12, 44; 39 Geo. Ill, c. 62 ; 41 Geo. III. (U.K.; C. 67. 

(/) 42 Geo. Ill, c. 91. 

(g) 42 Geo. Ill, c. 90. 

(A) 2 Geo. I (I), c. 9. 

(t 6 Geo. I (I), c. 3. 

(k) 19 Geo. II (I), c. 9. 

(1) 17 & 18 Geo III. (I), c. 13. 

(;)33Geo. Ill (I), c. 22. 

(?0 35 Geo. Ill 1), c. 8. 



Yeomanry and Volunteers. 175 

109. For some years after the Union the force continued to be Ch. IX. 
raised and governed under the ante-Union Acts, as amended by ts ~j7 
several Acts passed by the Parliament of the United Kingdom (a), Union, 
which encouraged voluntary enlistment by means of bounties to be 
advanced by the Treasury and repaid by the counties. Finally, all 
the Acts were consolidated in 1809 by an Act (b) which fixed 
the establishment of each regiment, and provided for raising the 
men by means of ballot, but gave power to the Lord Lieutenant to 
authorise the raising of men by voluntary enlistment by means of 
bounties advanced by the Treasury and repaid by the counties, and 
also to suspend the raising of any regiment. The Acts since 1852 
have been noticed before. 



Yeomanry and Volunteers. 

110. It has been mentioned before that volunteers were accepted Early 

voluut 
corps. 



in aid of the ballot for the militia, first as individuals, and then as Vl 



separate companies, but these separate companies formed, in fact, 
part of the militia (c). Besides the above, volunteer corps were 
raised independently of any Act ; some of them were known as 
Fencibles, and were chiefly raised in Scotland. Enactments were 
passed, however, to prevent the officers vacating their seats in 
Parliament by the acceptance of commissions, and to regulate 
their rank with officers of the militia (d). 

111. In 1794 an Act was passed to provide that any corps of Acts of 1794 
volunteers which had been raised by officers commissioned by the and ] 
King, or the lieutenant of the county, or by other persons author- 
ised by the King, and which in case of invasion or of riot should 
assemble and march, should receive the same pay as the regular 

forces, and be subject to military discipline ; such volunteers were 
to be exempted from liability to serve in the militia (e). These 
corps, it will be observed, were distinct from the militia. This 
Act expired at the peace of Amiens ; but in 1802 another Act 
was passed authorising the raising of yeomanry and volunteer 
corps (/). The eagerness to volunteer and the energy with which 
military preparations were taken up throughout the country for 
the purpose of resisting the threatened invasion of the French under 
Napoleon are well known, and upwards of 400,000 men were en- 
rolled (g). The men so enrolled were exempted not only from 
the regular militia, but also from the other forces which, as before 
mentioned, were organised at this period (/*), and the allegation 
was made that by reason of this exemption the volunteers were a 
disadvantage as interfering with the efficiency of the other forces. 

112. In 1804 an Act was passed in the face of considerable Act of 
opposition for consolidating and amending the Acts relating to the 
yeomanry and volunteers, and this was the Act under which, as 

1 amended by subsequent Acts, the Yeomanry in Great Britain were 
raised and served down to 1901 (i). 

(a) 41 Geo. Ill (U.K.), c. 6 ; 42 Geo. Ill, c. 109 ; 4.3 Geo. Ill, cc. 2, 33. 

(b) 49 Geo. Ill, c. 120. 

(c) See 18 Geo. Ill, c. 59 ; 19 Geo. Ill, c. 76 ; 34 Geo. Ill, c. 16. 
<</) 18 Geo. Ill, c. o'.>; 3o Geo. Ill, c. S3, s. 10. 

() 34 Geo. Ill, c. 31 ; 38 Geo. III. cc. 27, 51. 

(/) 42 Geo. Ill, c 66, amended by 43 Geo. Ill, c. 121 ; 44 Geo. Ill, c. 18. 

(<?) Stanhope's Life of Pitt, iv. 77, ch. xxxvi ; Clode, Mil. Forces, i. 313, 314. 

(A) See above, para. 101. As to the relation of these volunteers to the other forces, 
eee Clode, Mil. Forces, i. 312. 

(z) 44 Geo. Ill, c. 54, amended by 46 Geo. Ill, cc. 125, 140 ; 56 Geo. Ill, c. 39 ; 57 
Oeo. III. cc. 41, 44 ; 7 Geo. IV, c. 58 ; 51 & 52 Viet., c. 31, s. 2. The Act of 1304 was 
repealed as to volunteers in Great Britain by the Volunteer Act of 1^63. 



176 



HISTORY OF THE FORCES. 



Ch. IX. 

Position of 
yeomanry 
up to 1901. 



Present 
position of 
yeomanry. 



112,\. Before the Act of 1901, mentioned in the next paragraph, 
came into operation, the Yeomanry of Great Britain were in fact 
volunteer cavalry, and consisted of corps whose services had been 
offered to and accepted by the Sovereign, whether under the law- 
existing before the Act of 1804 (), or subsequently under the 
powers conferred by that Act. 

The number of "the Yeomanry was unlimited and enlistment 
voluntary. They did not rank as effective unless trained for a 
certain number of days in each year. Originally, under the Act of 
1804, they were liable in case of invasion, or the appearance of any 
enemy in force on the coast of Great Britain to assemble for mili- 
tiry service in any part of Great Britain ; but under the National 
Defence Act, 1888 (b\ they were made liable to be called out for 
actual military service in any part of Great Britain whenever an 
order embodying the Militia was in force, and the existing 
machinery for embodying and disembodying the Militia was applied 
to the Yeomanry. They were also able, under certain circumstances, 
to assemble voluntarily for improvement in military exercise, or 
to act for the suppression of riots (c). Under an Act of 1884 (cf), 
orders and regulations could be made as to the pay and pensions of 
the Yeomanry. Unlike the Volunteers, the Yeomanry were, even 
before 1901, subject to military law when being trained or exercised 
alone. 

The Act of 1804 did not apply to Ireland, but provision was 
made for the formation of a Yeomanry Corps in that country by an 
Act of 1802 (e). This act differed from the English Act in pro- 
viding for a Yeomanry on a different footing to the Yeomanry of 
Great Britain, and consisting of troops voluntarily enrolled for the 
protection of property and the preservation of peace in their locality,, 
and not liable to be called out compulsorily. 

The position of the Yeomanry under the old system, as regards 
subjection to military law, was as follows : If a corps of Yeomanry 
was called out on actual military service, or was being trained or 
exercised, whether it had been called out or assembled voluntarily, 
and whether it was serving alone or with any portion of the regular 
forces or of the Militia when subject to military law, every member 
of that corps was subject to military law. Individual members of 
a corps of Yeomanry were also subject to military law when they 
were attached to or acting with any regular forces, or when they 
were serving in aid of the civil power (/). 

The Act of 1804 has not been repealed, and, subject to the provisions 
of the Act now to be mentioned, still applies to the Yeomanry. 

112B. But now, under ;<n Act of 1901 (#), the previous character 
of the Yeomanry as a body of volunteer cavalry has been radically 
changed, and the position of members of the Yeomanry has been in. 
the main assimilated to that of members of the general Militia. 
The Act of 1901 applies only to members of the Yeomanry receiving 
commissions or enlisting after the 16th August, 1901 ; and in order 
to quiet certain doubts which had arisen, an Act of the following- 
year, expressly applied to the Yeomanry sections three and four of 
the Militia Act, 1882, relating to maintenance and government (A). 
These two Acts apply to Ireland equally with the rest of the United 



(a) 44 Geo. Ill, c. 54, s. 3. 

(ft) 51 & 52 Viet., c. 31. The Act contained a saving for existing yeorr.en. 

(c) 44 Geo. Ill, c. 54, ss. 5, 22, 23 & 46 ; 56 Geo. Ill, c. 39. 

(d) 47 & 48 Viet. c. 55, s. 2. 
le) 42 Geo. Ill, c. 6f. 

( /') Army Act, s. 176 (7) ; 44 Geo. III. c. 54, ss. 22, 23. 
((/) 1 Edw. VI f, c. 14 ; see p. 653 below. 
(h) 2 Edw. VII, c. 39 ; see p. 653 below. 



Billeting. 177 

Kingdom, with the result that a force of Yeomanry can be raised Ch. IX. 
in Ireland on the same footing as that in Great Britain ; and two 
regiments of Yeomanry have already been raised in Ireland. 

The power of the Crown to raise Yeomanry does not appear to 
le subject to any restriction as to numbers. 

113. After the peace of 1814 the foot volunteers fell almost Revival of 
entirely into abeyance ; but in 1859, in consequence of a panic re- ' 
specting the hostile tone of the French army and government and 

the defenceless state of the country, they were revived, chiefly as 
rifle volunteers, but partly as light horse, artillery, and engineers. 
The old Act was soon found unsuitable for the organisation of 

.the new force, and was replaced by an Act of 1863, which was 

1 again amended in 1869, 1881, 1895, 1897 and 1900 (). 

Billeting. 

114. Before concluding this summary, some notice must be taken Billeting, 
of the practice of billeting, which has at times been of great im- 
portance in English history. 

115. In early times troops were quartered under an order from Billeting in 
the king, or some officer authorised by him, such as the High early times - 
Harbinger, directed to the civil magistrate of the district, requiring 

him to provide quarters and provisions. This right to quarter was 
probably connected with the right of purveyance, and as the need of 
quartering only arose in time of war, the exercise of the right could 
not be complained of by those who were liable to serve in person or 
provide soldiers, arms, and provisions (6). 

116. But, like the right of purveyance, the right to quarter Abuse of the 
was no doubt abused and led to oppression ; and when it came to and^declara- 
\>e enforced to provide quarters for soldiers returning from the wars tion of 

and without employment, or (as in the reign of Charles I) to punish J lle g aiit y 

i i i i i- i i ^1 i i ' L i i thereof by 

towns which had displeased the Court by returning unacceptable petition of 

candidates to Parliament or otherwise (c), the abuse became intoler- Eight, 
able, and billeting was consequently declared to be illegal by the 
Petition of Eight (d). 

117. The practice nevertheless continued, though not without Billeting 
remonstrance, during the reign of Charles II (e), until 1679, when Charles ir. 
it was again declared to be illegal by an Act in which Parliament 
provided money for disbanding the troops, and, on condition of the 
disbandment, granted an indemnity for past illegal quarterings. 

This declaration of illegality, as well as that in the Petition of Right, 
is still in force (/). 

118. James II, however, again violated the law, and issued orders ^^ ing 
*/or billeting (f/), which gave rise to one of the complaints against him j am es II. 
mentioned in the Bill of Eights (A), after which the practice of bil- 
leting, except under statutory authority, was discontinued. The 

(a) These Acts are given below in Part III. The 1st Middlesex and 1st Devon- 
shire rifle volunteers existed some years before 1859. The Honourable Artillery 
Company also never ceased to exist. The Act of 1863 is 26 A 27 Viet. c. 65 ; of 

1869, 32 & 33 Viet. c. 81 ; of 1881. 44 & 45 Vi.-t. c. 57 ; of 1895, 58 A 59 Viut. c. 23 ; 
I of 1897, 60 i 61 Viet. c. 47 ; of 1900, 63 A 64 Viet. c. 39. 

(b) ScoU's Brit. Army, ii. 451, and Commissions in Rymer. The word " billet " 
is a diminution of " bill," a note, and is not derived from " bit," Latin billus, a stick 
used by slaves, nor from its derivative "billet," a wedge of gold or a log of wood, 
the size of which was fixed by the Acts 27 Edw. Ill, stat. 2, c. 14, and 43 Eliz. c. 
14, to be 3 ft. 4 in. by 7f in. (Wedgwood's Etym. Diet). The French word is derived 
from the English (Littr6). The word in relation to the quartering of troops i 
(used by Shakespeare, Othello, Act ii, Sc. 3. 

(c) See Forster's Life of Sir John Eliot, ii. 57, 96, 378, note. 

(d) 3 Cna. I, c. 1. 

'() Clode, Mil. Forces, i. 80, 81. 

(f) 31 Cha. II, c. I. 

<JF) Clode, Mil. Forces, i. 57, 61, and Appendix xii. 

4ft) 1 Will. & Mar. sess. 2, c. 2. 



178 



HISTORY OF THE FORCES. 



. IX. 



Billeting 
first autho- 
rised by 
Parliament 
in Mutiny 
Act, 1689. 



Billeting 
under Army 
Act. 



Billeting 
Hlegal 
except so 
far as 
expressly 
authorised. 



Billeting hi 
private 
bousea 
illegal. 



Billeting in 
Scotland. 



prevalence of the practice of billeting in the reigns of Charles IJ 
and James II arose from the necessity of providing quarters for 
the troops they maintained in time of peace ; and the complaint.* 
of the illegality of the practice were intensified by those troops being 
maintained without the consent of Parliament. 

119. When a standing army was, as before mentioned, authorised 
by Parliament after the Revolution, it became necessary to make 
legal provision for the accommodation of the army, as the barrack 
accommodation was insufficient, and accordingly, in the year 1689, 
the second Mutiny Act (a) authorised billeting. That Act, while 
affirming the illegality of billeting, as declared by the Petition of 
Eight and the Act of Charles II, recited that there was " occasions 
for the marching of many regiments, troops, and companies in 
several parts of this kingdom towards the sea-coasts and otherwise,' 7 
and empowered the constables and other chief officers and 
magistrates of cities, boroughs, towns, and villages, and other 
places, and no others, to quarter and billet officers and soldiers in* 
"inns, livery stables, alehouses, victualling houses, and all houses 
selling brandy, strong waters, cyder, or metheglin, by retaile, to 
be dranke in their houses, and noe other, and in noe private houses- 
whatsoever." 

120. The power thus conferred was subsequently re-enacted iii 
every Mutiny Act, until it was embodied in Part III of the Army 
Discipline and Regulation Act, 1879, now replaced by Part III 
of the Army Act. As the Army Act is only in operation by 
virtue of an Act passed annually, billeting continues illegal except 
to the extent expressly allowed by the Army Act, and so long only 
as that Act is kept in operation (6). The Annual Army Act alse- 
specifies the prices to be paid for billeting. 

121. The recital above quoted indicated that billeting was to be 
only of troops on the march, and the doubt which hence arose as 
to the power to billet the guards in Westminster led to the inser- 
tion in the Mutiny Act of 1707 of a special enactment, authorising 
them to be so billeted. This enactment was annually re-enacted 
until 1879 (c). In other parts of the country, however, troops were 
frequently billeted after they had arrived at their destination, under 
colour of a presumption that they were still on the march, and that 
the route authorising them to be billeted was still in force. 

122. Since the time when billeting was first authorised by the 
Mutiny Act, no alteration in principle, and but little in detail, 
has been made in the law as regards England. That law has never 
allowed billeting in private houses, though before the Revolution 
both Charles II and James II issued orders for such billeting (d). 
In Scotland and Ireland, on the other hand, such billeting was. 
allowed until quite recently ; indeed, it was only abolished in 
Ireland in the year 1879. 

123. As regards Scotland, billeting was regulated by a number 
of Acts passed before the Union with England, which, while 
prohibiting free quartering, contained no definition of the houses- 
liable to billets, so that private houses were not exempt. At the 
time of the Union, in 1708, the Mutiny Act was extended to- 
Scotland, and a provision was inserted (e) allowing officers and soldiers 



(a) 1 Will. & Mar. sess. 2, c. 4. 

(o) The Acts prohibiting billeting were suspended in express terms by the Mutiny 
Acts ; they are now suspended in general terms by s. 102 of the Army Act. 

(c) Clode, Mil. Forces, i. 232, 238. 

(d) Clode, Mil. Forces, i. 57, 61, 81, and App. xii. 
(<) 7 Ami. c. 4, s, 22, 



Billeting. 179 

to be quartered in such and the like places and houses as they might Ch. IX. 

have been quartered in by the laws in force at the time of the 

Union. 

This provision was annually re-enacted until 1857, when the pro- 
visions as to billeting in Scotland were assimilated to those in 
England (a). 

124. As regards Ireland, billeting was regulated by Acts passed Billeting in 
before the Union with Great Britain, which allowed billeting in Ireland - 
public houses (described in much the same terms as in England), 

and " where there shall not be found sufficient room in such houses, 
then in such manner as has heretofore been customary." After the 
Union the law remained the same, the provisions of the Irish Acts 
being at first continued by, and afterwards re-enacted in, the Mutiny 
Act until the year 1879, when the words allowing billeting in 
private houses were omitted from the Army Discipline and Regu- 
lation Act, and billeting was placed on the same footing through- 
out the United Kingdom (6). 

125. Although billeting was oppressive and generally unpopular Necessity of 
as well as detrimental to the soldier (c), yet down to the end of bl l I .'j ti r g 
the eighteenth century the opponents of a standing army objected to ^cklccom- 
the building of barracks on the ground that it facilitated the main- modation 
tenaiice of the army to the danger of the constitution and to the imu 
oppression of the people (d), and so long as these objections pre- 
vailed, billeting was a necessity. In 1792, however, steps were 

taken for providing sufficient accommodation for the troops (e), 
and during the nineteenth century barracks were gradually built, so 
that billeting is now hardly ever resorted to for the regular forces, 
except when actually moving, and the introduction of railways 
has greatly diminished its necessity even on those occasions. 

126. A check has always existed on the arbitrary exercise of Checks OB. 
the power of billeting, the power having been entrusted to civil abuse . of 
authorities, namely, the constable in the first instance, or in his P 
default the justices; and these authorities have been held liable to 

pay damages to persons on whom they billet soldiers improperly (/). 

127. Moreover, it has always been assumed that troops can only Routes, 
be moved by authority of a route signed on behalf of the Crown (g). 

I A route is an order of the Crown directing some military authority ing. 
to move troops as considered necessary and requiring the civil 
authorities to assist in providing quarters and impressing carriages. 
These ixnites have always been signed by some civil officer, and it has 
been the practice, which has now received statutory authority (A)^ 

(a) 20 Viet. o. 13. 

(6) Mr. W. L. Selfe, of Lincoln's Inn (now Judge Selfe), furnished details of the 
several changes in the billeting law, the most important of which, as regards England, 
will be found in the Mutiny Acts for 1701, 1702, 1707, 1712, 1715,1757, 17t>3, 1809 
1826, 1829, 1858. See also Pnrker v. F.int, 12 Mod. Rep., 255 (S. C. sub nomine Park- 
hurst v. foster), 1 Lord Raymond, 479. 

As regards Scotland, billeting was regulated by Acts passed in 1645, 1646, 1647^ 
1649, 1*78, 1689 (Claim of Right\ 1693, c. 2, 1698,'c. 9, 171*. 1844, and 1857. m 

As regards Ireland, billeting was regulated by Acts passed in 1707, 1717, 1779, 
1782, 1801, 1M3, and 1829. 

(c) See many details as to the difficulties which arose as to billeting in Clode, Mil. 
Forces, i. chap. xi. 

(d) Clode, Mil. Forces, i. 221, 242. 

(e) Under a barrack establishment set up by the military authorities ; the duties 
were, however, in a few years transferred to the Board of Ordnance. Clode, Mil. 
Forces, i. chap. xii. 

(/) This was decided in 1697, in the case of Parker v. Flint : note (b) supra. 

(g) Clode, Mil. Forces, i. 219. It does not quite appear whether the inability 'to 
move troops without a route was in consequence of the necessity of obtaining by 
means of the route carriages and billets, or of the route being a necessary authority 
for military reasons. 

(h) Army Act, 3. 103. 

(M.L.) M 2 



180 HISTORY OF THE FORCES. 

Ch. IX. for constables and justices to billet only on the production of such 
routes. Formerly the routes were signed from time to time, as 
they were wanted, by the Secretary at War, but in 1857 (soon after 
the creation of the office of Secretary of State for War) they were 
signed by the Secretary of State in blank, and issued to the 
military authorities to be used as required (a). The present practice 
is to have printed copies of the various routes (general, district, 
regimental, or deserter) signed in blank in lithograph by the Secre- 
tary of State in the name of the King. The details of the movement 
of troops are filled in by the military authority issuing the route, 
which is signed by an officer authorised to do so, if a general 
route, on behalf of the Quartermaster-General, and if a district 
route, on behalf of the general officer commanding. 

Billeting 128 - Ever since 1757 the Militia Acts have authorised the 

the militia, militia when out for training, and when embodied, to be billeted, 

and this has been done without a route under an order from the 

lieutenant of the county, and since 1871 from the commanding 

officer (6). 

Impressment of Carriages. 

Prerogative 129. Until the Restoration, carriages and horses could be obtained 
w g yance PUr ~ ^ or * ne mOTemen t f the troops under the Sovereign's prerogative 
of purveyance. This prerogative was abolished ic 1660 (c) in con- 
sequence of the great oppression caused by it, but in 1662 a power 
was given temporarily to impress carriages and horses for the use of 
the navy and the ordnance (d). 
impress- 130. The army in general was omitted, perhaps on purpose, 

"ne n Mutin er from tnis Act .' - but in 1692 a section was added to the Mutiny 
Act. my Act (') authorising justices when required by an order from the 
Crown to direct the constables to provide carriages for the use of 
the army when on the march within the kingdom, and specifying 
the maximum distance to be travelled, and the price to be paid. 
This section was intended to provide for the impressment of 
carriages to convey arms and baggage only (/), and contained re- 
strictions similar to those now in force prohibiting soldiers (other 
?than sick or wounded) from riding in the carriages, and forbidding 
the impressment of saddle horses. In 1799 a section was added (g) 
enabling the Crown in case of emergency to require the justices 
to provide carriages, saddle horses, and vessels for the conveyance 
-of persons as well as baggage. The two sections were annually re- 
peated in the Mutiny Act, with no alteration in principle, and very 
little in detail, down to the year 1879, when they were embodied 
in Part III of the Army Discipline and Regulation Act, which 
has been replaced by the Army Act. 

.(a) Clode, Mil. Forces, i. 219. 

(6) Clode, Mil. Forces, i. 42, and tire various Militia Acts. The enactment now in 
(force is s. 181 of the Army Act, which applies to yeomanry and volunteers as well | 
as to militia. 

<c) By 12 Cha. II, c. 24, s. 11. 

<o) 14 Cha. II, c. 20, which recited the repeal of the right of purveyance bj 12 Cba. 
'II, c. J4. The Act expired but was revived for seven years by 1 Ja. II, c. 11, was 
Again continued by 4 Will. & Mar. c. 24, and again by 11 Will. Ill, c. 13, but not sub- 
sequently, and was repealed by the Statute Law Revision Act, 1^3. The requisition 
wa to be made by warrant from the Lord High Admiral or two Commissioners of 
the 'Navy or from the Master or Lieutenant of the Ordnance, directed to two jus- 
tice* of the peace. The maximum distance to be travelled and the rate of 
remuneration were fixed by the Act. 

(e) 4 Will. A Mar. c. 13, s.>27. 

{ f) See 7 Ann. c. 4, s. 35. 

&) 39 Geo. Ill, c. 20, s. 46. 



Impressment of Carriages. 181 

131. Impressment of carriages in Scotland was long regulated Ch. IX. 

by Acts passed before the Union with England, which, after that 

ii i r !i -- ,- Scotland 

event, were annually kept in torce by a provision in the Mutiny an rt ire- 
Act till 1857, when the provisions applying to England were ex- land- 
tended to Scotland (a). In Ireland also impressment of carriages 
was regulated until 1813 by Acts passed before the Union, and kept 
in force after that event by a provision in the Mutiny Act. In 
that year (b) the provisions of the Irish Acts were transferred into 
the Mutiny Act, and consolidated as far as possible with the pro- 
visions applicable to England, but many differences in detail 
remained, some of which are still to be found in the third schedule 
to the Army Act (c). 

132. The power of impressment, like that of billeting, is exercised Or ^ rs ... 
only by the civil authority, that is to say, the justices and con- f mpr e 
stables. In the case of impressment for ordinary purposes these ment. 
authorities could at first act only under an order from the Crown, 
which necessarily was countersigned by the Secretary at War or 

some Minister ; but after 1708 (c/) orders were allowed* to be signed 
by the General of the Forces, while they might also be signeol 
by the Master-General or Lieutenaut-General of the Ordnance from- 
1720 (e) to 1855, when the Board of Ordnance was abolished ; and 
since 1807 (/") they have been allowed to be signed by any person 
duly authorised in that behalf. In practice, however, the power 
of impressment has been exercised only in pursuance of a route 
signed as in the case of a route authorising billeting; and this 
practice has now received statutory sanction in the Army Act 
(s. 112). Impressment in case of emergency was authorised by the 
Mutiny Act only on an order signified by the Secretary at War, or 
after the transfer of his duties, by the Secretary of State for War r . 
or in Ireland by the Chief Secretary or Under Secretary, or the first 
clerk in the Military Department, and the law in this respect remains 
unchanged (g), with the exception that such orders can no longer 
be signified in Ireland by any other official than the Chief or 
Under Secretary. The Act imposes penalties for disobedience^ 
to a requisition, but does not authorise the seizure of the carriages, 
&c., unless an order for the embodiment of the militia is in force ; in 
which case, the requisition may extend to purchase as well as hire, 
and a person refusing or neglecting to furnish carriages, &c., as 
ordered, is liable to have them seized (s. 115 (7) (8)). If, in any 
other case, they were seized, the owner would have a remedy by 
action for damages. 




(a) 20 Viet. c. 13. 

(b) 53 Geo. III. e. 17. 

(c) Mr. W. L. Selfe furnished the following references to the principal 
changes in the law as to impressment of carriages : 

1. As regards England. 7 Ann. c. 4, s. 37; 39 Geo. Ill, c. 20, s. 46 ; 39 & 40 Geo. 
Ill, c. 27, s. 4.=>; St> Geo. Ill, c. 10, s. 73 ; 10 Geo. IV, c. 6. 

2. As regards Scotland. Impressment was regulated before the Union by an Act of 
of the Parliament of Scotland, 1(593, e. 11. For subsequent changes see 58 Geo. Ill, 
e. 11, s. 87 ; 10 Geo. IV, c. 6 ; 20 Viet. c. 13. 

3. As regards Ireland, see Acts of Parliament of Ireland, 6 Ann c. 14 ; 3 Geo. II, 
c. 10 ; 15 Geo. II, c. 6 ; 7 Geo. Ill, c. 14; 19 & 20 Geo. Ill, c. 16; 21 & 22 Geo. 
Ill, c. 43 ; and 41 Geo. Ill (U.K.), c. 11, s. 55 ; 53 Geo. Ill, c. 17 ; 7 Geo. IV. c. 
10, s. 83. 

(d) 7 Ann. c. 4. 

(e) 6 Geo. I, c. 3. 

C/) 47 Geo. Ill, sess. 1, c. 32. 
(g) Army Act, s. 115. 



182 HISTORY OF THE FORCES. 

Cfc^IX. out for training, is subject to military law, and therefore with 
regard to impressment of carriages is in the same position as the 
regular army (a). 

fromT)ii nS 134- Tlie sult) ject f exemption from tolls is nearly connected with 
that of impressment of carriages. The exemption of carriages 
and vessels employed under requisitions of emergency was intro- 
duced in 1799 (6), when impressment under such requisitions was 
first allowed. The general exemptions now conferred by s. 143 of 
the Army Act were introduced into the Mutiny Act in 1803 (c), 
,-and 1807 (d). The clause as to payment of ferries in Scotland 
.dates from 1721 (e). Exemptions from turnpike tolls in England 
.are also conferred by the General Turnpike Act of 1822 (/), and 
-by various local Acts. The provisions were extended to the Army 
Heserve in 1867 (g). 



Conveyance of Troops by Railway. 

Conveyance 135. Shortly after the introduction of railways, provision was 
ma de with respect to the conveyance of troops by railroad. The 
first provision was made in 1842 (h) and required the directors of a 
railway company to permit, on the production of a route signed by 
the proper authorities, the conveyance of officers and soldiers of the 
army, marines, and militia, with their baggage, stores, arms, and 
ammunition, at the usual hours of starting, at such prices, or on 
such conditions as might be contracted for between the Secretary 
at War and the railway company. This enactment was strengthened 
in 1844 (i), when the companies were required to provide convey- 
-ance at fares not exceeding those mentioned in the Act, and a 
maximum of fares was also prescribed for the conveyance of public 
'baggage, stores, ammunition (with an exception for gunpowder and 
explosives), and necessaries. These provisions were extended to the 
Army Reserve in 1867 (g), and were re-enacted in 1883 (X 1 ) as regards 
the regular, reserve, and auxiliary forces as well as for naval 
forces. The Act of 1883 reduces the maximum fares and requires 
the provision of such description of carriages as are specified 
in the route, but provides that if the company loses the 
benefit conferred by the other provisions of the Act with respect 
to the exemption from passenger duty, they are to convey the 
forces and baggage on the same terms as if the Act had not 
passed. 

Tower to 136. Tn 1871 it was enacted that when Her Majesty by Order in 

sf k n ofra1l- Council declared that an emergency had arisen in which it was 

ways in expedient for the public service that the Government should have 

ease of control over the railroads in the United Kingdom, or any of them, 

.ergency. ^ e Secretary of State might empower any person to take possession 

of any railroad, and of the plant belonging thereto, and use the 



(a) 30 Geo. II, c. 25 ; 26 Geo. Ill, c. 107. The enactment now in force is s. 181 of I 
the Army Act, which applies to yeomanry and volunteers, as well as to militia. 
(6) 39 Geo. Ill, c. 20, s. 46. 

(c) 43 Geo. Ill, c. 20, s. 55. 

(d) 47 Geo. Ill, seas. 1, c. 32, s. 60. 
<e) 1 Gee. I, c. 6. 

(/) 3 Geo. IV, c. 126, s. 32. 

(y) 30 & 31 Viet. c. 110, s. 16 ; re-enacted by 45 & 46 Viet. c. 4S. s. 23. 

(fi) 5 & K Viet. c. 55, s. 20. 

(t) 7 & 8 Viet. c. 85, s. 12. 

<A-) 46 & 47 Viet. c. 34, s. 6 (see p. 615 infra.). 



Conveyance of Troops by Railway. 183 

same for Her Majesty's service in such manner as the Secretary of Ch. IX". 
State might direct. Full compensation must be paid to the persons 
whose railroad is taken possession of (a). The Secretary of State 
is, by the National Defence Act, 1888, authorised to claim 
precedence for traffic for military purposes over all railways whilst 
an order for the embodiment of the militia is in force (b). This 
Act, as well as the Act of 1871, extends also to tramways. 



(a) 34 & 35 Viet. c. 86, s. 16. 

(b) 51 & 52 Viet. c. 31, s. 4. See below, Part III. 



184 



CHAPTER X. 



Object of 
chapter. 



Term of ; 

original 

enlistment. 



Change of 
conditions 
of service. 



Re -engage- 
ment. 



Con- 
tinuance in 
service, after 
21 years. 

Regulations 
as to exten- 
sion, re-en- 
fagernent, 
c. 



ENLISTMENT. 

1. A summary of the history of enlistment down to the year 187O 
has been given in Chapter IX : it is proposed in this chapter to- 
sketch the system in operation under existing Acts, and under the- 
Recruiting Regulations, which give general instructions as to the 
appointment and duties of recruiting agents, the qualification of 
recruits, the mode of recruiting, and other matters. 

2. The provisions of the Army Enlistment Act, 1870, are re- 
enacted with slight modifications in the Army Act, so that the; 
latter only need be noticed. A recruit is not to engage for more- 
than 12 years, and may engage to serve the whole time with the 
colours, or part of the time with the colours and part in the Army 
Reserve (a). Enlistment for a term less than 12 years would, how- 
ever, be legal, and any part of such term might be for service iia 
the reserve (6). 

3. A Secretary of State, however, may allow a soldier, if he- 
wishes, to go into the reserve at once, or to extend his army service 
(i.e., service with the colours) for any time up to the whole term 
of his original enlistment, or to extend the term of his original 
enlistment up to 12 years or any shorter period (b). f 

4. The old term of 21 years is still retained ; as, subject to any 
regulations made by the Secretary of State, a soldier whilst serving 
with the colours may, after the expiration of 9 years from the date 
of his original enlistment, with the approval of the competent 
military authority (c), re-engage to serve for such a further period 
of army service as will make up a total of 21 years' continuous 
service (d). 

5. Subject also to such regulations, a soldier who so re-engages- 
may, at the end of the 21 years, with the approval of the competent 
military authority, continue to serve, with a right to his discharge 
3 months after he claims it (e). 

6. Efficient soldiers, of good character, if fit for service at home 
and abroad are allowed under certain conditions to extend their 
service so as to complete with the colours, either 7 (or, in the case 
of men of the Royal Garrison Artillery 8 and of other Artillery 6) 
\ears or 12 years with the colours ; the extension must be approved 
by the commanding officer (/). 

The present regulations, however, restrict the re-engagement and 
continuance of service, as private soldiers cannot re-engage before | 
completion of 1 1 years' service, and then only if thoroughly efficient 8 
to the satisfaction of the officer commanding ; and are only allowed 

(a) Under the Reserve Forces Act, 1882. 
(6) Army Act, ss. 76-78. 

(c) For definition of the competent military authority, see Army Act, ss. 101 (1) 
190 (32), and Rule 128 ; see also K.R., para. 264. 

(d) Army Act, s. 84. As to the conditions under which approval is authorised 
to be given, see K.R., paras. 264 to 269. 

() Army Act, s. 85. 1 

(/)K.R., para. L-62. 



Forfeiture of Service. Transfer. 185 

in special cases, with the approval of the officer commanding, to Ch. X. 
continue their service beyond 21 years (a). 

7. Under the same regulations, non-commissioned officers, if tit for Regulations 
service at home and abroad, are allowed, under certain conditions, commit" 
and with the approval of the commanding officer, to extend their oned 
army service, so as to complete either 6, 7, 8, or 12 years with the offi 
colours. Warrant officers and staff- sergeants and sergeants, after 
completing 9 years' service, and schoolmasters, after completing 

11 years' service, have the right to re-engage, subject only to the 
veto of the General Officer Commandiug-in-Chief. Other non- 
commissioned officers are in the same position as regards re-engage- 
ment as private soldiers. 

Non-commissioned officers may, with the approval of the com- 
manding officer (who before approving must, with a few exceptions, 
obtain the consent of some superior authority), continue their service 
after 21 years, but have not the right to do so (b). 

8. A soldier is liable to be detained in service for 12 months p ower ; n 
beyond the time at which he would otherwise be transferred to the certain cir- 
reserve, or discharged, if a state of war exists, or if he is beyond the cumstances 
seas, or if the reserves are called out. A soldier who would otherwise soldier after 
be discharged may also agree with the competent military authority, expiration 
while a state of war exists, to continue as a soldier during the war, of hlsternu 
or until the end of 3 months after he claims his discharge (c). 

The power of the Crown to discharge a soldier is noticed belo w. 

In case of imminent national danger or great emergency, when the 
reserves can be called out for permanent service by the King's 
proclamation, a like proclamation can require men who would 
otherwise be transferred to the reserve to continue in army service : 
these men are then in the same position as if they had been trans- 
ferred to the reserve and called out on permanent service (of). 

9. The Acts of 1847 and 1867 and 1870 adopted, in reckoning Forfeiture 
the years of a soldier's service, the principle of omitting those of l ervice 
periods during which he had not given the service which he had ^rmer 
agreed upon enlistment to give, e.g., by having been in prison, or Acts. 

by reason of desertion, or absence without leave. After 1870, the 
effect of applying thin principle to men liable under their enlistment 
to enter the reserve, was to protract the time before a soldier's 
entry into the reserve, but not the term of his liability to service 
in the reserve. It kept with the colours inferior men whose places 
might otherwise have been filled by good recruits. 

10. The Army Act, therefore, abandons this principle, and does Provisions 
not, because a man is a bad soldier and constantly under sentence, A f c tafu> 
require him to serve longer, but allows him to be discharged or forfeiture erf 
sent into the reserve at the usual time. On the other hand, it pro- service, 
vides that a soldier guilty of desertion or fraudulent enlistment 

shall forfeit, not only the time of his absence, but all his service 
prior to his conviction, and be liable to serve as if he had been 
attested at the date of his conviction, or of the order dispensing 
with his trial in the case of confession ; the term of any imprison- 
j ment or detention to which he is sentenced will reckon as part of 
his service after that date. The Secretary of State, however, has 
power to restore all or any part of the service forfeited (e). 

(a) K.R., paras. 262, 264, and 270-272. 

(6) See Army Act, s. 86 ; K.R., paras. 262, 264, 270, 272, to which reference 
must be made for details, 
(c) Army Act, ss. 87, 88, also s. 77. 

(</) Army Act, s. 88. See Reserve Forces Act, 1882 ss. 12, 14. 
I (e) Army Act, ss. 73, 79. See further as to restoration of Service, K.R., para. 273. 



186 



ENLISTMENT. 



Oh. X. 

Effect of 
provisions. 



Enlistment 
for general 
service and 
appoint- 
ment to 
corps. 



Power to 

transfer 

under 

former 

Acts. 



Provisions 
of Army 
Act as to 
transfer. 



By consent. 



From regi- 
ment 
ordered 
abroad from 
home, or 
vice versa. 



As a punish- 
tr.ent. 



11. This forfeiture, coupled with the provision as to the liability 
of a soldier convicted of the above offences to general service, will 
enable a man who has committed them to be sent to serve abroad, 
or in some other sphere where, by reason of greater activity or 
otherwise, he will be removed from tjie class of temptation under 
which he may have committed the offence. For, however serious 
the above offences are in a military sense, they are often committed, 
not from any want of moral character or any reluctance to serve, but 
from some discontent, or from association with bad companions, or 
from some sudden or special temptation inducing the man to absent 
himself. 

12. A man may, since 1870, under the Recruiting Regulations, be I 
engaged for service in any particular corps, but otherwise he is 
enlisted for general service or general service (infantry), or general 
service (cavalry), and, if enlisted for general service, or general 
service (infantry), or general service (cavalry), he is, under the 
present law, to be appointed, as soon as practicable, to some corps, 
or some corps of those arms of the service, but may be trans- 
ferred, within three months of his attestation, to any other corps of 
the same arm or branch of the service (a). 

13. The power to transfer used formerly to be exercised in such a 
manner as to make it oppressive and much dreaded by the soldier. 
The Mutiny Act in 1765 expressly authorised courts-martial to 
sentence deserters to be transferred for service in foreign parts ; 
but subsequently transfer, except by consent or as a punishment, 
was abandoned. 

14. At present, when once a soldier is appointed to a corps for 
which he enlisted (or, if he enlisted for general service, has served 
for three months in a corps to which he has been appointed), he may 
make it his home so long as he serves with the colours, provided he 
conducts himself fairly well, and is qualified to serve in the place in 
which his corps is ordered to serve. He may be transferred, however, 
to another corps with his own consent, or compulsorily. The com- 
pulsory transfer may be either (1) for the purpose of retaining 
him in a place when his corps removes ; or (2) as a punishment, 

15. It may happen that a man who is appointed to the cavalry 
may, with advantage, be transferred to the infantry, if he is unable 
to learn to ride ; while a man may be transferred to another corps 
for the purpose of serving with a brother. These cases would be 
with his consent. 

16. When a soldier has been invalided from abroad, or his 
battalion is ordered abroad, and he is unfit to serve abroad, or will, 
within two years, go into the reserve, or be discharged, be can, if he 
does not go into the reserve at once, be transferred compulsorily to 
a corps of the same branch of the service in the United Kingdom 
or to the reserve. Similarly, when a regiment or battalion abroad 
is ordered home or to another station, a soldier who has (in addition 
to his reserve service) two years' army service to run under his 
original enlistment, may, for the purpose of serving abroad the 
residue of his army service, be transferred compulsorily to another 
corps of the same branch. 

17. A soldier who has been guilty of desertion or fraudulent 
enlistment, or has been sentenced by a court-martial to not less than 
three months' detention, may have his punishment wholly or I 
partly commuted into a liability to general service, and he may then 
be transferred from time to time to any corps. This power may 
well be exercised in cases where a soldier gets into trouble in the 



(a) Army Act, s. 83 (1). 



I 



Application of Army Act. 187 

United Kingdom and there is a prospect of his being converted Ch. X. 
into a good soldier by being sent abroad (a). A soldier committed 
as a deserter by a civil magistrate in any part of His Majesty's 
dominions may be transferred compulsorily to a corps near the place 
where he is committed, or to any other corps if the competent 
military authority direct, but this power need not often be exer- 
cised (6). 

18. The enlistment of the soldier is a species of contract between Conditions 
the Sovereign and the soldier, and under the ordinary principles melitnot 
of law cannot be altered without the consent of both parties. The varied 
result is that the conditions laid down in the Act under which a ^jg^of 
man was enlisted, cannot be varied without his consent. A soldier, soldier, 
however, who has enlisted under one Act, and re-engaged undergo* 31 
another, has thereby consented to place himself under the Act under 33434' 
which he re-engaged. So also has a soldier who has given notice Viet., c, 67. 
to continue his service, though until the passing of the Army Act 

lie had been assumed to remain under the Act to which he was 
subject at the time when he gave the notice (c). 

19. The above principle was recognised in 1879, as the Army Application 
Discipline and Eegulation (Commencement) Act of that year pro- Act to^ 
vided that the Army Discipline and Regulation Act, 1879, shouJd soldiers en- 
jiot affect the position of a soldier, without his consent, as regards 

the term of his service, or his liability to forfeit his service or to be 
transferred to another corps. 

20. The liability to genei'al service on conviction for desertion Further 
or fraudulent enlistment was extended to old soldiers, because it icms OT 

is a mitigation of punishment for an offence ; but the power to transfer application 
soldiers given by sub-sections (4) and (5) of section 83 did not apply A f c f rmy 
to any soldier who enlisted between the 19th of June, 1867, and the 
9th of August, 1870, if he had not re-engaged. A soldier who 
re-engaged after the commencement of the Army Discipline and 
Regulation Act, 1879, became, on the principles before mentioned, 
subject to the whole of Part II of the Army Act; and a soldier who 
extended his army service, or who gave notice to continue his 
service after the commencement of the Army Act, is also deemed 
to have consented to the application to him of the whole of Part II 
of that Act. 

21. Since 1694 (d) a soldier has been required to be attested Attestation 
before some civil authority as a mode of protecting him against being authority 
entrapped, without understanding the nature of it, into a contract, required 
which, even though not a contract for life, is one of a very serious since 1694- 
nature. Attestation was also adopted as a protection from impress- 
ment (e). The practice which exists in many parts of the country 

of concluding a bargain by giving some earnest of it, was adopted 
in the case of enlistment by the giving of the shilling, and 
formerly the acceptance of the shilling rendered the man for some 
purposes a soldier (/"). 

(i) See above, para. 11. 

(6) As to transfer generally, see Army Act, s. 83, K.R., paras. 323-334 ; and 
as to competent military authority, Army Act, s. 101 (1). and Hule liS. 

(c) The effect of these provisions is to bring all soldiers now serving under the 
Act of 1881, as any soldier enlisted under a previous Act and now serving must 
have either re-engaged or continued his service under the Act of 1S81. 

(d) 5 & 6 Will. & Mar., c. 15, s. 2, quoted in Clode, Mil. Forces, ii. p. 7. 

(e) The Secretary at War used to discharge soldiers improperly enlisted. See 
Ciode, Mil. Forces, ii. p. 8. The King's Bench discharged soldiers improperly im- 
pressed, Ii v. A'essel, Burrow's Rep. ti37. See Clode, Mil. Forces, ii. p. 587. 

(f) The acceptance of the shilling was treated as an agreement by the man to 
enlist, and either to complete his enlistment by attestation before a justice, or, 
in default, to pay smart money, which latterly amounted to 20s. Enactments 
were made forgiving him notice of what he was about to agree to, and for the lapsa 



188 



ENLISTMENT. 



Ch. X. 

Provisions 
of Army 
Act as to 

attestation. 



Evidence of 
attestation. 



Acceptance 
of pay 
renders a 
soldier sub- 
ject to 
military 
law, though 
not 
attested. 



22. Under the Army Act, the acceptance of the shilling has no 
such effect. A man offering to enlist receives a notice informing 
him of the general conditions of service in the army, and of the 
requirements of attestation, and directing his appearance before a. 
justice (a). If he fails to appear he has merely broken his bargain ;. 
he cannot be arrested as a criminal ; and on appearing before the 
justice he may object to enlist, and if so cannot be required to pay 
any smart money. If he appears before the justice and takes the 
oath, he becomes an attested soldier, but he will still be able to 
procure his discharge within three months by paying a sum which 
is not to exceed, and is at present fixed at, ten pounds. The attesta- 
tion consists in appearing before the justice, answering certain 
questions, which are recorded, and making and signing a declara- 
tion as to the truth of those answers, and taking the oath of 
allegiance (&). Thereupon he becomes for all purposes a soldier, 
and any invalidity in the attestation can only be taken advantage 
of within three months afterwards. Any immaterial error in the 
attestation paper can be amended at any subsequent time by a 
justice (c). The disqualification of an officer while subject to 
military law (except a militia officer when not embodied) to act as 
a justice for the purpose of attesting recruits for the regular forces, 
was removed in 1883 ; and officers are now empowered so to act, if 
authorised by the regulations of a Secretary of State. The persons 
who in India, the colonies, and foreign countries have authority to 
attest recruits, are enumerated in s. 94 of the Army Act. 

23. The attestation paper is signed in duplicate, so that the 
original may be kept at home and the duplicate follow the man 
wherever serving (d). This practice renders less important the pro- 
visions of the Army Act (s. 163) for proof of enlistment by a 
certified copy of the attestation paper, which prevent a prosecution 
for desertion abroad failing by reason of the attestation paper being 
at home. _ The same section makes an attestation paper evidence of 
the soldier having given the answers set out in it, a provision 
useful in case of a prosecution for making a false answer ; in which 
case an attestation paper alone, and not a copy, is evidence. 

24. Notwithstanding the provisions for protecting persons from 
being entrapped into being soldiers, it has always been the law that 
a man in pay as a soldier is subject to military law, though not 
attested. This law is still maintained, because if a man chooses to 
serve and take pay as a soldier, he must be considered to have 
accepted the conditions under which he is paid and treated as a 
soldier, and therefore to be subject to military law. Even an alien 
who enlists by making a false answer would apparently come under 
the same rule. The Act, however, provides that a man in such a 
position may claim his discharge at any time, and the commanding 
officer is to forward the claim to the competent military authority 
for submission to the Secretary of State ; but the man, until dis- 
charged, has no right to absent himself, and is liable in all respects 
to be treated as a soldier. This provision as to discharge will not 

of a certain time between his receipt of the shilling and notice, and his final attesta- 
tion before the justice. On the other hand, if he absconded between his acceptance 
of the shilling and his appearance before the justice, he was liable to be apprehended 
as a vagabond, and punished accordingly, and also to be compulsorily attested as 
a soldier. 

(a) For persons included in the term "justice" for the purpose of enlistment, 
see Army Act, a. 94. 

(6) As to the form of oath and the validitylof enlistment without it, see Clode, 
Mil. Forces, ii. 21. 

(c) Army Act, ss. 80, 81, 100. 

(of) K.R., paras. 1900-1906. 



Aliens. 189 

apply to a soldier who has gone through the form of attestation, Ch. X. 
but whose attestation is illegal, because after three months no 
advantage can be taken of any invalidity in the attestation (a). 

25. If an apprentice in the United Kingdom, who was bound Enlistment 
when under sixteen by a regular iudentura for at least four years, ' 
enlists while still under twenty-one, he can be claimed by his master, 
through a proceeding before justices, but not otherwise. An 
apprentice who is so claimed is not liable afterwards to serve under 

'his enlistment. The claim must be made within one month after 
the apprentice left his master's service. The apprentice is liable to, 
qand on demand of his commanding officer must, be tried by the 
justice before whom the proceeding is taken for the offence of 
making a false statement on his attestation. With the above 
exception, and a similar one for indentured labourers in the colonies, 
a master cannot claim his servant who has enlisted (6). 

26. An enlistment is a valid contract, although entered into by a Of minors, 
person under twenty-one, who by the ordinary rules of law, except 

I where modified by statute, cannot, as a general rule, contract any 
engagement (c). 

27. Though the Act of Settlement (d) which prohibits aliens Of aliens, 
folding any office, civil or military, does not in terms apply to settlement; 
soldiers, and though there was no statutory prohibition of the enlist- 
ment of foreigners, it seems to have been considered that the 

Crown had no authority either to enlist aliens for service in the 
United Kingdom, and consequently to punish them for desertion, or 
to billet them when in this country (e). 

28. Statutory power was therefore taken in 1757, and again in Limited 
1782, to quarter foreign troops in this kingdom (/), and in 1794 and enlist * 
in subsequent years statutory power was taken by the Crown to aliens, 
enlist aliens, even though they were to serve abroad (#). This was 
subject to the conditions that they were not to be brought into the 
United Kingdom, except with a view to operations abroad ; that 

if so brought they were not to go more than five miles from the sea 
coast, and that there were never to be more than 5,000 men in the 
kingdom. A similar provision was made in 1800 (k), and during the 
Crimean War in 1854 (i), but in the latter case the only restrictions 
were that the number of men brought into the United Kingdom 
was not to exceed 10,000, and that they were not to be billeted. The 
illegality of the enlistment of aliens has also been recognised iu 
other Acts (), till at last, in 1837, it was enacted that, with the 
permission of the Crown (given in each case), an alien might be 
enlisted, but the number of alieus in any corps was not to exceed the 
proportion of one to every fifty natural-born subjects, and this pro- 



Ca) Army Act, a. 100. 

(6) Army Act, ss. 96, 97. 

(c) See cases cited in Clode, Mil. Forces, ii. p. 34, jR. v. Rot/ierfield Greyf, IB. & C., 
pp. 349, 350. See also R. v. ttardwick, 5 B. & Aid. 176. 

((f) 12 & 13 Will. Ill, c. 2, s. 3. An officer does, but a private does not, hold an 
-office, 

(e) Olode, Mil. Forces, i. pp. 89, 90, 487 ; ii. pp. 35, 431-435. Foreign troops seem 
to have been received in or brought into the kingdom iu the time of Anne and 
Jeo. I. Report on recruiting. 1867, Parl. P., 215. 

( f) See 30 Geo. II, c. 2 ; 22 Geo. Ill, c. 26. 

<0) See 34 Geo. Ill, c. 43. The Act 29 Geo. II, c. 5, recited the enlistment of 
foreigners in America, and gave power to commission them, but not to enlist. This 
was given by the amending Act, 38 Geo. Ill, c. 13. 

(A) 39 & 40 Geo. Ill, c. 100. 

(i) is & 19 Viet, c. 2. 

(k) See 44 Geo. Ill, c. 75 ; and 46 Geo. Ill, c. 23, continued by 55 Geo. Ill, c. 85. 
See also the provisions on the amalgamation of the Indian Army, 24 & 25 
Viet. c. T, =. 2. 



190 



ENLISTMENT. 



Ch. X. 



33 & 34 
Viet., c. 14. 



Discharge. 

Power of 
Crown to 
discharge 
soldiers. 



Certificate 
of dis- 
charge. 



Conveyance 
home of 
soldiers on 
discharge. 



Disposal of 

lunatic 

soldiers. 



vision has been re-enacted in the Army Act (a). An alien so 
enlisted is by the Army Act made incapable of becoming an officer, 
A relaxation in favour of negroes and persons of colour was origin- 
ally made in consequence of negroes captured in slavers being 
taken into the service of the Crown, and has been continued to 
legalise the recruiting of natives on the West Coast of Africa for 
service in the West Tndia regiments and of Lascars in the East ; and 
the relaxation has recently been extended to inhabitants of British 
protectorates in order to enable troops raised in the East and West 
African protectorates to serve outside their boundaries (6). It must 
also be recollected that under the Naturalization Act, 1870, a 
naturalized alien has the same privileges as a British subject, and 
therefore is capable of being enlisted to serve His Majesty. 

29. The terms of the enlistment of a soldier, since he has been 
enlisted directly by the Crown, have always been to serve the 
Sovereign so long as his services are required, within the period 
for which he agrees to serve ; consequently the Sovereign has 
always had power to discharge soldiers. But a soldier cannot be 
discharged except by order of the Sovereign or under some 
statutory power, such as the sentence of a court-martial, to which 
is added in the Army Act, an "order of the competent military 
authority" (c). 

30. A soldier on his discharge is entitled to receive a certificate 
of discharge, so as to show that he is properly discharged and is 
not a deserter. In addition to the certificate of discharge, he 
also receives a certificate of character, showing his conduct, charac- 
ter, and cause of discharge. Until he is duly discharged he 
remains subject to military law. Discharge has been at different 
times regarded as a reward or as a punishment (d). When the 
service was for life, discharge was in many cases the highest object 
of a soldier's desires, and even now in a time of scarcity of labour 
and consequent high wages it may be a material advantage to him. 
There is no reference in the present law to discharge as a reward. 
On the other hand, discharge with ignominy, or discharge toward* 
the end of a man's service shortly before he becomes entitled to 
receive pension, cannot but have the effect of a punishment. 

31. A soldier enlisted in the United Kingdom is entitled if, 
on the completion of his service, he is abroad, to be sent to tin- 
United Kingdom, free of expense, for his discharge ; and a soldier 
enlisted in the United Kingdom, and discharged there, is entitled to> 
be sent free of expense from the place where he is discharged to the 
place where he was attested, or to his residence, if his conveyance 
there costs no more (e). In no other case has a soldier any 
statutory right to be sent free of expense to any place on dis- 
charge, though, in some cases, he may be allowed a free convey- 
ance as a matter of favour (/). 

32. If a soldier is a lunatic, a Secretary of State or an officer 
deputed by him for the purpose may send him on his discharge, 
and also his wife and child, to the workhouse of the parish or union 
to which he is chargeable, and if he is a dangerous lunatic may send 

(a) 7 Will. IV & 1 Viet. c. 29 ; Army Act, 8. 95 (1). 

(t) Army Act, s. 95. 

(c) Army Act, s. 92. For definition of the competent military authority, see 
Army Act, sg. 101 (1), 190 (32), also Rule 128. For regulations as to discharge, see 
K.E., paras. 376-412. 

(ff) See Clode, Mil. Forces ii. pp. 43-47. 

(e) Army Act, s. 90. The old provisions enabling discharged soldiers and the 
wives and children of soldiers ordered abroad to obtain from a justice of the peace 
or mayor a t ertiricate entitling them to beg their way home have been repealed. 

( f) See Allowance Itegulations, para. 339 (a), for the present practice. | 



Offences in relation to Enlistment. 191 

him to the lunatic asylum for lunatics chargeable to that parish or Ch. X 
union (a). 

33. The only power, except with the soldier's consent, of sending Transfer 
him into the reserve before the stipulated time is on occasion of re3erve - 
his being unfit to serve abroad, or of his regiment being ordered 
abroad shortly before the expiration of the time of his service with 

the colours (6). A soldier who is transferred to the Army Reserve 
is entitled, on transfer, to free conveyance to his place of attesta- 
tion or selected place of residence (if not involving greater cost) in 
the United Kingdom, but has no claim to free conveyance to any 
place on final discharge from the army after completing his service 
in the reserve (c). 

34. Offences in relation to enlistment, when committed by Offences 
persons who are at the time or thereafter become subject to 
military law, are punishable by military law under ss. 13, 32-34 

of the Army Act. A man renders himself liable to punishment 
not exceeding imprisonment who, after being* discharged with 
ignominy, or as incorrigible and worthless, or for misconduct, 
or on account of conviction for felony or a sentence of penal 
servitude, or dismissed with disgrace from the Navy, enlists 
without disclosing the circumstances of his discharge or dismissal. 

A recruiter who enlists any man whom he has reason to believe 
to have been so discharged or dismissed, also renders himself liable 
to imprisonment. 

The making of a false answer to any question on attestation 
renders the offender liable to impris >nment on the sentence either 
of a civil court of summary jurisdiction for the place where the 
offence was committed, or where the offender may happen to be, 
or of a court-martial (d) ; and any person who uses, or gives for 
use, for the purposes of enlistment a false statement as to character 
or previous employment is liable on summary conviction to a fine 
not exceeding twenty pounds (e). 

No one may enlist soldiers unless duly authorised, and any 
person who does so is liable to a fine not exceeding twenty 
pounds (/). 

A man who, while belonging to one corps, enlists in the same 
or any other corps, is guilty of fraudulent enlistment, and can be 
punished for it ; but as he has made two engagements he can be 
held to either engagement, and is thus liable to serve, as the 
military authorities direct, in accordance with the terms of his 
original attestation, or those of his new attestation, and (unless he 
has enlisted in the corps to which he already belongs) in either 
of the corps to which he has been appointed to serve (g). 

| (a) Army Act, s. 91. See also K.E. 406-403. 

(6) Army Act, s. K9. 

. (c) ArmyAct, s. 90. For the further benefits in this respect now enjoyed, by 
I reservists, see Allowance Regulations, para. 340 (a). 

(d) Army Act, ss. <W. M), and Notes. 
I (e) Stamen's and Sold ers' Fnl:e Characters Act, 1906, (6 Edw. 7, c. 5), s.'2. 

(/) Army Act, s. 98. Under the Mutiny Act, authority was in terms granted t<> 
consuls and other persons abroad to enlist soldiers ; but the present Act makes it 
clear that those officers have only power, like the justices at home, to attest nd 
have no power to act otherwise ill recruiting unless specially authorised 'to d 
BO. See s. 94. 

(g) For details see K.R., para. 522. 



192 



CHAPTER XI. 



CONSTITUTION OF THE MILITARY FOECES OF THE 

CROWN. 



Military 
forces oon 
cist of 
Regular 
forces and 
Auxiliary 
forces. 



Observa- 
tions on 
Indian 
forces. 



Gbserva-; 
tions on 
Colonial 
forces. 



Introductory. 

1. The military forces of the Crown are divided by the Army Act 
into the Regular forces and the Auxiliary forces. 

The Regular forces,jnay be divided into 

(L.) British forces ; 
(2.) Indian forces ; 
(3.) Colonial forces. 

2. The Indian forces consist of regiments permanently stationed 
in India, and formed almost entirely from natives of India. The 
officers and men of these forces, who are natives of India, are 
subject to the Indian Articles of War wherever they are serving, 
and are only to a limited extent subject to the Army Act (a). 
Besides the natives of India there are Europeans serving as officers 
and persons of certain degrees of European descent serving as non- 
commissioned officers, hospital apprentices, or otherwise, who, 
though forming part of the Indian forces, are subject to British 
and not to Indian military law. The enlistment of Europeans for 
these forces, except for medical or other special service, is pro- 
hibited (b). Commissions on the unattached list for appointment 
to the Indian Army may be given to cadets who have passed | 
through Sandhurst. If it is required to supplement this direct 
supply, officers of the British forces are, if qualified according to the 
regulations for the time being in force, eligible for commissions, 
and if commissioned are transferred permanently to the Indian 
Army. Officers are employed, according as the Government | 
of India may direct, in any military or civil employment, irrespec- 
tive of their ranks in the Indian Army. Such officers, while holding I 
civil employments, cannot assume a military command, but 
continue to receive promotion in military rank in the ordinary 
course ; and on accepting any military appointment they are 
entitled to take military command (c). 

3. The Colonial forces are of two classes, namely, the forces raised 
by the government of a colony, and the forces raised in a colony by 
direct order of His Majesty to serve as auxiliary to, and in fact to 
form part for the time being of, the regular forces. The first class of 
Colonial forces those raised by the government of a colony are 
only subject to the Army Act when serving with part of His 

la) Array Act, s. 1-0. The Indian Articles of War (Act No. 5 ot I*ti9 ; see also! 
Act No 12 of 1X94) provide that the military law enacted by those articles shall not I 
apply ' to any British-born subject of Her Majesty, or any legitimate Christian lineal 
descendant of such subject, whether in the paternal or maternal line, but all such 
persons belongin ' 

if they belonged 



, 

belonging to Her Majesty's Indian Army shall l>e triable and punishable as 
elonged to Her Majesty's British forces." The expression " Natives of India," 
for the purposes of the Army Act and of this chapter, means all persons belonging to 
His Majesty's Indian Army who are triable by Indian and not by English military 



law 



(6) 23 & 24 Viet. c. 100 ; Army Act, s. 180 (2) (h.) and note. 
(c) Royal Warrant of 16 January, 1868, as amended. 



British Forces. 193 

Majesty's regular forces, and then only so far as the colonial law Ok- XI 
.ias not provided for their government and discipline, and subject 
to the exceptions specified in the general orders of the general 
officer commanding the forces with which they are serving. The 
Army Act, however (s. 177), provides that the colonial law may 
extend to the forces, although beyond the limits of the colony 
where they are raised. 

The second class of Colonial forces of which the West India 
"j regiment, the Royal Malta Artillery, the West African regiment, 
{the non- Europeans of the Fortress Companies, Royal Engineers, 
sat Hong Kong and Sierra Leone, and the local companies of Royal 
Artillery in Hong Kong, Ceylon, and elsewhere, are examples 
(a) is referred to by ss. 175 (4) and 176 (3) of the Army Act. 
Their pay and maintenance are voted annually by the Imperial 
Parliament, and they are in fact Imperial forces although serving in 
a colony. The Royal Malta Artillery (before 1889 styled the Malta 
Fencible Artillery) are declared by the Army Act to be part of the 
regular forces, while the others are included in the regular forces 
"by the Royal Warrant defining "Corps" : but see s. 176 and note. 
The local companies of Royal Artillery in Hong Kong, &c., and the 
West India regiment are in fact enlisted to serve in any part of 
the world. A man may enlist in the Royal Malta Artillery either 
or service in Malta alone or for service in any part of the world. 

British Forces. 

4. The British forces require a longer notice. They consist British 

(1) Of the Army commonly so-called, including the Reserves ; forces. 

(2) Of the Marines. 

5. The Army commonly so-called consists Constitu- 
(1) Of cavalry, composed of four corps for the purpose of tion of 

enlistment (b), and divided into thirty-one regiments ; "Army" 
{2) Of the Royal Regiment of Artillery, of which the mounted acaeptatioa 
and dismounted branches are divided into two corps, of .term, 
named respectively : (i) The Royal Horse Artillery and 
the Royal Field Artillery, to which is affiliated the 
Lancashire Royal Field Artillery (Militia) ; (ii) the Royal 
Garrison Artillery (which includes Mountain artillery and 
the Royal Artillery Clerks' section), to which are alliiiated 
the Royal Garrison Artillery (Militia) and the Royal 
Garrison Artillery (Volunteers). 

(3) Of the corps of Royal Engineers, divided into troops and 

companies (c). 

. (4) Of 157 battalions of infantry (of which nine form four 
regiments of foot-guards, while the remaining 148 are 
distributed into 69 territorial regiments). Each territorial 
regiment includes two or more line battalions, one or 
more battalions of Militia, and the infantry Volunteer 
battalions located in the territorial district (<i). 

(a) The local companies of Royal Artillery at Ceylon, Mauritius, Hong Kong, and 
'tMiigapore have been formed into two battalions, styled respectively the Ceylon- 
Mauritius, and the Hong Kong-Singapore battalions. 

(6) The corps of Household Cavalry, and the corps of Dragoons, Lancers, and 
Hussars, of the line. 

(c) The Militia Engineers and the Volunteer Engineers also form part of the corps 
<of Koyal Engineers. 

(d) Two regiments of Foot Guards have three battalions each, one regiment 




Brigade 

(M.L.) M 



194 



CONSTITUTION OF THE FORCES. 



Cb. XI. 



Depart- 
mental 
corps. 



Other de- 
partments 
connected 
with the 
Army. 



Unit of 
army for 
enlistment 
and service 
is the corps; 



(5) Of the Army Service Corps, which is sub-divided into 

the Transport, Supply, Kemount, Mechanical Transport, 
and Barrack sections. 

(6) Of the Army Medical Service, composed of the Army 

Medical Staff, and the Boyal Army Medical Corps, to 
which are affiliated the Eoyal Army Medical Corps 
(Militia) and the Eoyal Army Medical Corps (Volunteers). 

6. In addition there are departmental corps (a), namely, the 
Army Ordnance Corps, Army Pay Corps, Army Veterinary Corps, 
Band of the Eoyal Military College, Corps of the School of 
Musketry, Corps of Military Staff Clerks, Corps of Army School- 
masters, Corps of Military Police (Mounted and Foot), Army Post 
Office Corps, and Military Provost Staff Corps. The duties of these 
corps are sufficiently indicated by their names. Each of them is 
a corps for the purposes of the Army Act, though the appointment, 
enlistment, and transfer of officers and men is not regulated quite 
in the same way as in the case of the territorial regiments ; and 
in connection with some of the above corps civilians are employed 
who are not subject to military law. 

7. Further, it is necessary to mention various departments con- 
nected wih the army, which are not corps within the meaning of the 
Army Act. These are the Army Pay Department, Army Veterinary 
Staff, Army Accounts Department, Army Chaplains' Department, 
Army Ordnance Department, and Queen Alexandra's Imperial Mili- 
tary Nursing Service. They are not technically corps within the 
meaning of the Army Act, inasmuch as they are not declared to be 
so by Eoyal Warrant. If, however, any soldiers subject to military 
law were added to the above departments, they would be a " portion 
of His Majesty's regular forces employed on some service," and 
therefore be a corps within the meaning of the Army Act (b). 

8. For the purposes of enlistment and service, the unit in the 
army (in the Army Act referred to by the common name of " corps "> 
is one of the above regiments or corps. A soldier, on his enlist- 
ment, is appointed to a corps, and is bound to serve in any part of 
it ; and may belong for the whole of his military life to the corps to 
which he is first appointed. The officers are also appointed to- 
these corps, but are all alike officers of His Majesty's land forces,, 
and have army rank as such, which may or may not be the same 
as their regimental rank ; that is to say, the rank in the above unit. 
They are consequently legally liable to serve with any portion of 
the army, if so ordered, and not merely with the unit to which they 
may be"appointed ; though in practice they are not required to 
do so. An officer has no right to resign his commission at all times 
and under any circumstances whenever he pleases. This was- 
decided long ago in the case of officers serving the East India 
Company, and recently in the case of a naval officer who, having 
been refused leave to resign, sent in his resignation, and quitted 
the service while abroad in order to take up a civil appointment 
at home (c). Exactly the same principles are applicable to com- 
missions in the army. 

-contains four battalions, of regulars. Each of the above regiments, and each 
branch of the Royal Artillery, and also the Royal Engineers, Army Service Corps, 
and Royal Army Medical Corps, is a separate corps for the purposes of enlistment 
and other purposes of the Army Act. 

(a) Royal Warrant, 9 April, li'04. As to precedence, X.R., para. 1761. 

8 ^r^.L^S^&. 2419; Vertue v. Lord dive, 4 Burr. 2472; and 
P v Cummy' K. p. Hall, L. R. 19 Q. B. D. 13, Hearson v. Churchill, L. B. [1892] 
2 Q. B.'lll. See also the dictum of Ccc'iburn, C. J., in Ex parte Trencfiard, L. B, 



Explanation of " Corps " and " Commanding Officer." 195 

9. The unit for purposes of discipline and some purposes of Ch. XI. 
administration is not necessarily the same as the above unit. In Uni j~|~ 
the case of infantry, for instance, the unit for purposes of ,,1"',;, pur . 
discipline is primd facie one battalion. If, however, part of the pos.--s lint- 
" 



battalion is serving detached from the rest, that part becomes the 
unit for purposes of discipline, while for many purposes of admini- 
stration it remains part of the battalion ; at the same time all 
men in a battalion are liable to be ordered to serve in any other 
part of the corps, whereas they cannot be transferred to any other 
corps without their consent or except as a punishment for certain 
offences, or in special cases provided for by the Army Act (). 

10. Throughoutthe Army Act the "commandingofficer" isreferred 

,, i i- i i j? j_i tion ol term 

to for many purposes, and particularly for the purposes of invest 7 .- comm;mrt- 

gating charges and awarding summary and minor punishments, ing otn^-r." 
The Act does not define the term "commanding officer." The 
Rules of Procedure contain a definition, for the purposes of all the 
rules and also for the purpose of the sections of the Act relating 
to " Courts-martial" to the " Execution of sentences" and to the 
"Power <>f Commanding Officer" (b). In cases to which this definition 
does not apply, it must depend on the custom of the service and the 
King's Regulations, as to who is, under any given circumstances, 
the commanding officer for a particular purpose. 

11. The Reserves have been treated above as part of what is Reserves 
commonly called the army, although they are really only part Reserve! 5 ' 
of the army when called out for active service. The Reserve (2.) Militia- . 
Forces Acts provide for the formation of an Army Reserve and of Reserv ' e - 

a Militia Reserve, but enlistment for the Militia Reserve has 
ceased since April, 1901 (c). 

12. The Reserve Forces Act, 1882, authorises the keeping up of Army 
an Army Reserve containing two classes, each to consist of such divided 
numbers as may be from time to time provided by Parliament ; into two 
the first class is liable to service either at home or abroad ; the classes - 
second class, if it were in existence, would be liable only to serve in 

the United Kingdom. 

13. The first class consists of three sections, A, B, and D ; Section p irst class 
D could not formerly be called out for permanent service until the of Army 
whole of Sections A and B had been called out, and was therefore R eserve - 
known as the supplemental reserve, but this restriction is now no 
longer operative (d). 

14. Section A (e) consists of reservists who engage at the time Section A of 
of their first transfer to the reserve to join that section, or are first c ASA ' 
permitted to join that section from section B within the first three 
months of their transfer to the reserve, to complete in that section 

the residue of the period required to complete the first year of reserve 
service. No man is allowed to engage in this section unless his. 
character on transfer to the reserve was not lower than " good/' 1 
and unless he is pronounced to be medically fit. The number of 
men in the section is limited to 6,000, and preference is given to- 
men who have served abroad over those who have only served at 

9 Q. B. 406. Clode, Mil. Forces, ii, p. 96. Command formerly depended on the- 
commission, but is now the subject of regulation, Army Act, s. 71 ; see K.B. 217-236 
and 37-47. 

(a) See ch. X paras. 14-17, and Army Act, s. 83. 

(b) See Rule 129, and K.R., para. 456. 

(c) Army Order 88 of 1901. 

(d) 45 & 46 Viet. c. 43, s. 3. Army Reserve Regulations, Royal Warrant, 
16th March, 1907, para. 1. 63 & 64 Viet. c. 42, s. 1 ; see p. 621, note (a), below. 
Section C was abolished in 1904, and the men in it transfened to Section B : A.O. 
-02 of 1904. 

(e) Army Reserve Regulations, para. 1. Section A as originally constituted was 
closed for enlistment after 1879, and consequently became extinct. 

(M.L.) N 2 



19G 



CONSTITUTION OF THE FORCES. 



Section B of 
fird class. 



Ch. XI. home. Men joining this section must agree in writing to the 
conditions of service (a), and are enrolled therein on the date of 
their transfer to the reserve, or, if transferred from Section B, 
within three months from their first transfer to that section. 

A reservist of Section A may revoke his engagement as such by 
giving three months' notice in writing to Ids commanding officer, if 
not required for permanent service during that period. On receiving 
his release, or on completing his engagement in Section A (which 
is limited to the 12 months immediately following transfer to the 
reserve, unless he is permitted to re-engage for a further period of 
one year), he reverts to section B of the reserve under the terms of 
his Army attestation. If a reservist of Section A so misconducts 
Ijimself as to make himself not immediately available for service, 
he is relegated to Section B (6). 

15. Section B consists of soldiers enlisted for short service, 
who, having completed their period of colour service, are trans- 
ferred to the Army Reserve under the conditions of their enlistment, 
to complete the period for which they originally engaged. The usual 
conditions for short service men are seven years with the colours 
and five in the reserve. 

Section B also includes men who revert to it from Section A ; 
and men the residue of whose term of colour service has been 
-converted into service in the reserve. 

The last mentioned class of men comprised in Section B 
-includes soldiers whose conditions of service have been varied 
"by the Secretary of State so as to allow them, instead of 
serving with the colours during their whole period of army 
service, to enter the reserve at once for the residue of the term of I 
their original enlistment. They are transferred to the reserve, and | 
placed in Section B. (c). 

17. A soldier who enters Section B receives a parchment (Reserve) 
certificate (d). His discharge documents are made out on his 
entering the reserve, but remain in the custody of the officer 
charged with the payment of the Army Reserve, until he 
finally quits the reserve, when his parchment certificate of dis- 
charge is handed to him completed and corrected to date. 

18. Some examples will make clearer the above explanations of 
Sections A and B of the Army Reserve. V,W, and X all enlist in the 
infantry for twelve years, of which seven years are to be in army 
service and five years in reserve service. V and W serve with the 
colours seven years and then pass into the Army Reserve. 
V engages to join Section A, and continues in it for tw r elve months 
from the date of his passing to the reserve, when he reverts to 
Section B for the remaining four years of his reserve service, and 
is then discharged. W serves five years in Section B and is then 
discharged. X, after serving three years with the colours, converts, 
with the sanction of the Secretary of State, the rest of his army 
service into reserve service, and passes into Section B, and after i 
nine years in it is discharged. | 

19. Section D consists of men who, on the completion of their 
first period of engagement (when completed wholly with the 
colours, or partly with the colours and partly in Section B of 
the reserve), are enlisted or re-engaged to serve for a further 
period of four years in this section. In the case of the Infantry 
and Artillery Reserve, men who on discharge after completing their 



"Entry info. 
Section B. 



Jllustra- 
( ions of 
Sections A 
and B. 



D. 



(a) See para. 24 below. 

(6) Army Reserve Regulations, para. 47. 

(<;) Army Act, s. 78. K.H. 3tJ7, 3H8. 

(d) A reservist serving in Section A belongs for the purpose of transfer to Section B. | 



Army Reserve. 197 

first period of engagement received characters other than " bad " Ch. XI. 
or "very bad" ai - e eligible for service in this section of the reserve; 
but in the case of other arms only those are eligible whose character 
is at least "good." 

A man can be enlisted if he is in Section B of the reserve, 
within six months, and if he is with the colours, within the 
fortnight before his discharge, but in either case his service in 
Section D does not commence until his discharge. Re-engagement 
for a second period is not allowed except in the case of men 
possessing certain trade qualifications (a) such as farriers, saddlers, 
&c., and if their age exceeds 46 years, the re-engagement can only 
extend till they reach 50. A note of the man's enlistment or re- 
engagement (as the case may be) is entered on his parchment 
discharge certificate, or parchment reserve certificate, and on his 
discharge from Section D he receives a parchment certificate of 
discharge, the form of which depends on whether he enlisted or 
re-engaged for Section D (6). 

Enlistment in and, (except in the case of men possessing the- 
special trade qualifications above-mentioned) re-engagements for, 
Section D were suspended between the 1st July, 1906, and the 
1st July, 1907 ('.'). 

20. The second class of the Army Reserve consisted, besides Second class- 
men enrolled under former Acts, of men enlisted or enrolled from 



(a.) Chelsea out-pensioners, or Greenwich out-pensioners being 

ex-marines, and 
(&.) Men who had served full time in the army (d). 

Both these divisions of the second class are extinct. 

21. Men who enter the reserve, if they enter under the terms Entry by 
of their original enlistment, or on a variation of those terms, are en^fnien* 
transferred ; and, if otherwise, are either enlisted or re-engaged, 

and may be enlisted or re-engaged for such term and in such 
manner as is fixed by regulations (e). 

22. Army Reserve men are liable to be called out annually Annual 
for training, for a time not exceeding twelve days or twenty Army" 8 Oi 
drills, and may then be attached to a body of the regular or auxiliary Reserve 
forces (/). men. 

23. They are also liable to be called out by a Secretary of State, Calling out 
or by the Lord Lieutenant in Ireland, to aid the civil power in c" v u'po4er 
the preservation of the public peace. The men residing in 

any town or district are liable to be called out for the same 
purpose by the officer commanding the town or district on the 
requisition in writing of a justice (g). 

24. Further, they are liable to be called out on permanent Liability to 
service, by proclamation of His Majesty in Council " in case of f e e r r ^ c a e nen<t 
" imminent national danger or of great emergency, the occasion S ' 

" being first communicated to Parliament, if Parliament be then 
" sitting, or declared in Council and notified by the Proclamation 
" if Parliament be not then sitting " (h}. 

(a) Army Reserve Kegulations, para. 18. 

(6) Army Reserve Regulations, para. 28. 

(c) Army Orders 164 of 1906, and 131 of 1907. 

(of) Reserve Forces Act, 1882, s. 3. 

(e) Reserve Forces Act, 1882, s. 4. 

(/) Reserve Forces Act, 1882, s. 11. See also Instructions for the training and 

I drill of the Army Keserve (Infantry) issued annually with Army Orders, sreiierallv 
in March or April. 
(g) Reserve Forces Act, 1882, s. o. 

(A) Reserve Forces Act,_18s2, s. 12. Army Act, s. 88 (2). These words wero 
substituted, in 1870, for " in case of actual invasion or imminent danger thereof or 
in case a state of war exists between Her Majesty and any foreign power," and in 



198 CONSTITUTION OF THE FORCES. 

Ch. XI. One proclamation issued under s. 12 of the Reserve Forces 
Act, 1882, may order the Army and Militia Eeserve, or either of 
them, to be called out, and may charge a Secretary of State with 
the duty of giving the necessary directions. These directions may 
extend to one force or both forces, and by them the Secretary of 
State can from time to time call out according as may be necessary 
either some or all of the men of either force. 

When either the Army or Militia Reserve is called out, Parliament 
is to be summoned by proclamation to meet within ten days, if it 
would not otherwise meet sooner (a). 

In addition to the above liability, reservists belonging to 
Section A are liable under Section 1 of the Reserve Forces and 
Militia Act, 1898, to be called out on permanent service during the 
period of their engagement in that section, whether it lasts for 
twelve months or for two years, if required for service outside the 
United Kingdom when warlike operations are in preparation or in 
progress. When so called out they are liable to serve with the 
colours for not more than twelve months. Should, however, any 
portion of the reserve be called out on permanent service under 
Section 12 of the Act of 1882, then reservists of Section A become 
liable to serve to the same extent as any other portion of the 
reserve which has been called out (b). 

The calling out of Section A under the Act of 1898 does not 
require a proclamation by the King in Council, nor involve the 
meeting of Parliament, but any exercise of this power must be 
reported to Parliament as soon as may be. 

25. Every man, when called out, is liable to serve until His 
Majesty no longer requires his services ; but not beyond his 
unexpired term of service in the reserve, with the addition of 
twelve months more if a state of war exists, or if he is on service 
beyond the seas, or if the men in the reserves are at the time called 
out, that is, if there is imminent national danger or great emergency. 
An Army Reserve man, when called out, forms part of the 
Regular Forces, and may be appointed to any corps as a soldier, 
and transferred within three months afterwards to any other corps ; 
but a man enlisted before the passing of the Rt serve Forces Act, 
1906, cannot be appointed or transferred to an arm or branch 
of the service other than that in which he previously served unless 
he consents (c). 

Under the Army Reserve Regulations, a reserve man is not 
allowed to proceed as a settler to any foreign country, nor to any 
colony in which there is not a British garrison, except in very 
exceptional cases, and is not allowed to quit the United Kingdom 
or proceed to sea without leave from his commanding officer. He 
is also duly to report himself and, if called on, to present himself 
for medical examination (rf). 

He-entry on 26. When so allowed by regulations an Army Reserve man can 

Service voluntarily re-enter on service with the colours for all or any part 

of the residue unexpired of the term of his original enlistment, or 

consequence of the expiration of the five years lor which men enrolled before the 9th of 
August, 1870, were enrolled, the words in the text now apply to all men in the Army 
Keserve. See Army Reserve Act, 1867, s. 10 ; Army Enlistment Act, 1870, ss. 5, 14. 
() Keserve Forces Act, 1882, s. 13. 

(b) Para 14 ; Army Keserve Regulations, paras. 43 and 44 ; Territorial and Keserve 
Forces Act, 1907, s. 32 (2). 

(c) Keserve Forces Act, 1882, s. 14 ; Eeserve Forces Act, 1906 (6 Edw. VII, c. 11), s. 2. 
(d.) Army Reserve Regulations, paras. 57-76 ; Reserve Forces Act, 1899. Tile Reserve 

Forces Act, 1906, s. 1 (2), provides for the making of regulations under s. 20 of the 
Keserve Forces Act, 1882, prescribing- the condition under which men belonging to 
the Reserve may reside out of the United Kingdom, and the conditions under which 
men may be enlisted (out of the United Kingdom) for the Reserve, but at present 
no regulations have Leen made under this provision. 



Militia Reserve. Marines. 199 

for any time not exceeding twelve years from the date of his Ch. XT. 
original enlistment (a). 

27. As stated above, the Reserve Forces Act contains provisions Militia 
(see ss. 8-10) for the formation of a Militia Reserve. It is not, Reserve, 
however, necessary to give here more than a very brief account of 

the statutory provisions in question, inasmuch as there is now no 
longer any Militia Reserve, enlistment for it having ceased in 
April, 1901 (b). The provisions in question are as follows : 

The Militia Reserve is to consist of such number of men as may 
lie provided by Parliament ; and they may be enlisted from the 
Militia of any part of the United Kingdom either for six years or 
for the residue of their militia engagement (c). 

28. A man in the Militia Reserve is liable to be called out Annual 
-annually for training for such time as the Secretary of State tramin 2 
directs, not exceeding 56 days, and may be so trained with either 

the regular or auxiliary forces ; but this annual training is in 
substitution for the annual training to which he is liable as a 
militiaman (d). 

29. The Militia Reserve can be called out on permanent service Liability to 
by the King's proclamation mentioned above (e). A man in the ^ r r ^ e nenfc 
Militia Reserve when called out becomes for all purposes a soldier 

in the regular forces, and can be appointed or transferred to a 
corps in the same manner as an Army Reserve man, and is other- 
wise under the same liability to service (/). 

30. A man in the Militia Reserve remains for all purposes a Other pro- 
militiaman until called out for permanent service. When so called t^Mmtia 
out, his place in the militia is deemed vacant, and is to be filled up. Reserve 
When released from permanent service, he is to return to the men> 
tnilitia for the remainder of his engagement, and until he can 
resume his former position, is to be a supernumerary, but is to 

liave rank, pay, and allowances not lower than when he entered 
on permanent service (g). The Secretary of State may discharge a 
Militia Reserve man from the reserve, and thereupon he becomes 
a, militiaman only (g). 

31. The King, by order under the hand of a Secretary of State, General 
can make orders for the government, discipline, and pay of the r^uiluoua 
Army and Militia Reserve, and other matters relating to them ; for reserve 
and subject to any such orders the Secretary of State can make forces and 
regulations for the 'like purpose (7i). result? 1 

The result is that men in the Army Reserve do not practically 
form a portion of His Majesty's regular forces, except when called 
out for permanent service ; and that men in the Militia Reserve, 
when not called out for permanent service, are in fact militiamen 
and members of the auxiliary forces, and not of the regular forces. 

32. On several occasions regiments appear to have been raised for Mariccs. 
service at sea, but it was also formerly the practice for regiments 

of the land forces to be sent to serve on shipboard ; and even as late 
as the present century certain regiments were more usually sent 
on this service than others. 

33. The regiment now known as the Royal Marines was first Regiment 

_ . of Royal 

I (a) Army Act, s. 78 (2). Under existing regulations, a man cannot, under Marines 
ordinary circumstances, re-enter on army service unless specially permitted to raised iu 
do so. K.R., par.i. 375 ; Army Reserve Regulations, paras. 23-76. 1755.. 

(b) A.O. 8Sof 1901. 
(c]j Reserve Forces Act, 1882, ss. 8, 9. 

(d) Reserve Forces Act, 1882, s. 11. 

(e) Para. 24. 

(/) Reserve Forces Act, 1882, s. 14. 
(g) Reserve Forces Act, If 82, s. 10. 
(h) Reserve forces Act, 1SS2, s. 20. 



200 



CONSTITUTION OF THE FORCES. 



Ch. XI. 



Term of 
service, &c. 



Transfer of 
Royal 
Marines to 
army. 



Expenses of 

Royal 

Marines. 



Connection 
between 
auxiliary 
and regular 
forces. 



Association 
of militia 
in corps 



raised in the year 1755, and consists of two divisions, the infantry: 
and artillery. " The artillery rank after the Eoyal Artillery ; the* 
infantry rank after the Royal Berkshire regiment (a). The men are 
liable to serve on board His Majesty's ships, and when borne on 
the books of any of His Majesty's ships for such service are subject 
to the Naval Discipline Act, as if they were seamen of the Royal 
Navy. When not borne on the books of any of His Majesty's- 
ships they are subject to the Army Act (b). 

84. The men are enlisted according to the procedure in Part II 
of the Army Act, except that the duration of their service is- 
fixed, by Acts applying only to them, at a term of twelve years, 
with a power to re-engage for a further period of nine years, 
making up twenty-one years in the whole (c). The service of a 
Marine on a foreign station may be prolonged for two years ; and. 
a marine who desires to continue in the service after twenty-one- 
years may give notice of his desire, and, with the approval of his. 
commanding officer, may continue in the service, with a right to be 
discharged after the expiration of three months' notice. A marine., 
on the completion of his term of service abroad, is, like a soldier, 
entitled on his discharge to be sent home to England. A marine is- 
not allowed to reckon towards completion of his engagement the 
time during which he is absent from his duty by reason of imprison- 
ment, or desertion, or other specified circumstances (d). 

35. The Secretary of State and the Admiralty can make regulations 
providing for the transfer with his consent of a man of the Royal 
Marines to another part of the regular forces, and of a soldier 
of any part of the regular forces to the Royal Marines, and a 
man so transferred is to become a Royal Marine or a soldier of 
the other part of the regular forces as nearly as possible as if he 
had been enlisted for the force to which he is transferred (e). 

36. The expenses of the marine force are included in the votes 
for the Admiralty, and the force is under the control of the 
Admiralty, and not of the Secretary of State for War ; and the 
Admiralty exercise, in respect of the Royal Marines, many functions 
that are exercised, in the case of the land forces, directly by 
His Majesty (/). 

Auxiliary Forces (g). 

37. The auxiliary forces are connected with the regular forces by 
the inclusion of the militia and the volunteers of the different 
localities in the regiments of regulars before mentioned. Certain 
battalions of those regiments are militia battalions, and others- 
are sty.td voiunteer battalions (h). 

38. Every militiaman enlists in the militia for some county, 
but the King has power by order under the hand of a Secretary of 



(a) Clode, Mil. Forces, i. chs. iv, xiii. As to precedence, K.R., para. 1761. 

(b) Army Act, ss. 179 (15), 190 (8). 

(c) 10 & 11 Viet, c. 63 ; 20 Viet. c. 1. 
(rf) 10 & 11 Viet, c. 6.\s. 8. 

(e) Army Act, s. 179 (12), as amended by s. 7 of Annual Act, 1884, ansl s. 7 of.' 
Annual Act, 1886. 

(/) Army Act, s. 179 (4) (6)-(ll). 

(ff) This term is defined in the Army Act, s. 190 (12), but has been discontinued* 
in official documents. A.O. 190 of 1891. 

No notice is taken in this chapter of the Territorial and Reserve Forces Act, 1907. 
See above, Advertisement, p. vii. 

(A) See above, para. 5 and notes thereto. Certain regiments, however, of Militia p 
and Volunteers are not included in regiments of regulars, but form corps by them- r 
selves : see the heading " Corps composed wholly of auxiliary forces," in the Koyal j 
Warrant of 9th April, 1904, detiuing " Corps." 



Militia. 201 

State to form the militia into regiments and battalions, and to form Ch. 
such regiments and battalions into corps (a), and under this power witl ~ 
the infantry militia are included in the regiments of regulars ; but regulars, 
the recruit must be appointed to serve in the regiment for the 
county, or for an area comprising the whole or part of the county. 
In like manner the militia artillery forms part of the Royal 
Artillery, and the militia engineers form part of the Royal 
Engineers. There are no militia cavalry expressly so-called, but 
the yeomanry (which till 1901 were a volunteer cavalry force) have 
now been put upon the same basis as the militia, but are not in any 
way included in the regular cavalry. A certain number of 
militia companies are included in the Royal Army Medical Corps. 

39. The two descriptions of militia, the general (or regular) General and 
militia and the local militia, and also the general character of the m ju t j a 
enactments respecting the local militia, and respecting the regular 

militia so far as raised by ballot, have been stated elsewhere (6), and 
as the local militia and the ballot for the regular militia are at present 
in abeyance, further details on that part of the subject will not 
be added here. Almost the only difference between the balloted 
force of the regular militia, and the enlisted force as it at present 
exists, consists in the mode in which they are raised ; and all the 
provisions of the Militia Act, 1882 (c), except the five sections of 
Part II (which apply only to the militia voluntarily enlisted), 
apply to the regular militia, however raised. 

40. The Militia Act, 1882, requires the Crown to appoint Provisions 
Lieutenants for the different counties in the kingdom ; those ^ f c ^ Il 1 I ig'|' 
Lieutenants may appoint vice-lieutenants, and nrust appoint at least Lieutenants 
twenty deputy-lieutenants. The persons appointed are to be of counties 
approved and may be displaced by the Crown, and must hold certain lieutenant"! 
property qualifications (d). 

41. The King by order under the hand of a Secretary of State Govern- 
can make orders as to government, discipline, and pay, and all other militia! 
matters respecting the militia, and, so far as the orders do not 
extend, the Secretary of State can make regulations for the same 
purpose, either generally or in any special case. The above are in 

this chapter referred to as the " orders and regulations." 

42. The Act authorises the Crown to raise and keep up the militia. Numt.er 
As before stated, the numbers are to be annually fixed by try en'i'i'"*'- 
Parliament ; and as the present force is raised by voluntary ment of 
enlistment, and the ballot is in abeyance, quotas are not required (e). men - 
The men are to be enlisted by such persons as the orders and 
regulations direct (/), and are at present enlisted by the same 
recruiting officers as the men of the regular forces. The enlistment 

and attestation of a militiaman is effected in much the same 
manner as the enlistment of a regular soldier (g). The enlistment 
may be for such period not exceeding 6 years, as the orders 
and regulations fix, and within 12 months of the end of his 
current period of service, a man may be re-engaged for such further 
period not exceeding 6 years, as may be so fixed. At present 
the first period is fixed at 6 years, and the second at 4 years from 

(a) Militia Act, 1882, ss. 4, 8. 

(b) See Ch. IX. 

(c) 45 & 46 Viet. c. 49, repealing the Militia (Voluntary Enlistment) Act, 1875- 
38 & 39 Viet. c. 69. 

(if) Militia Act, 1882, ss. 29-36. 

(e) Militia Act, 1882, ss. 3, 37. See Ch. IX, para. 77. 
. (/) Militia Act, 1882, s. 7. 

(<?) Militia Act, 1882, ss. 9, 10. Militia Regulations, para. 66 ; RecruitiDg Regu- 
lations, para. 185. 



202 



CONSTITUTION OF THE FORCES. 



Ch. XI. 



Officers and 
ttaff. 



Command. 



Permanent 
f-taff of 
militia. 



Training of 

recruits. 



Annual 
training 
and 
exercise. 



the expiration of the current engagement ; but a man may, if 
not more than 45 years of age, re-engage at the end of the last 
training during his current engagement or at any subsequent 
period prior to the expiration of his engagement, for a period of 
four years (a). Men who have been discharged without pension 
from the regular army, militia, or imperial yeomanry, after not 
less than 2 years' service, and with at least a fair character, 
may re-enlist in the militia for a term of 4 years, provided they 
are not more than 45 years of age. Pensioners may also re-enlist 
if under 45 years of age (6). 

43. Besides the formation of the militia into regiments and 
corps before mentioned, the orders and regulations can regulate 
the appointment, rank, duties, and number of the officers and 
the staff of each regiment ; but the lieutenants of counties have 
the right of nominating to first commissions within 30 days 
after each vacancy (c). The officers are always subject to military 
law (d). 

44. The command to be exercised by officers or non-commissioned 
officers of regulars over the militia, or by militia officers or non- 
commissioned officers over other portions of the regular forces, 
depends on regulations made by the King (e). 

45. Besides the non-commissioned officers and men of the militia 
who are merely called out occasionally for annual training, there 
are certain non - commissioned officers and men in continuous 
service who form, with the adjutant and other officers, the 
permanent staff of the militia, and train the recruits, and carry on 
the administration of the battalions. All of them are subject 
to the Army Act, and not to the Militia Acts (/). 

46. Recruits when enlisted have to undergo a preliminary 
training for the period fixed by the orders and regulations, not 
exceeding six months, and the orders and regulations may provide 
for any officer or man being called up with his own consent for 
purposes of instruction (g). 

47. The force must be trained and exercised for not less than 21 
nor more than 28 days in every year at such times and places in the 
United Kingdom as the orders and regulations fix ; and His 
Majesty in Council may extend the period of training to 56 days. 
Further, His Majesty in Council may at any time reduce the period 
of training to less than 21 days, or suspend it entirely (h). In the 
case of militiamen enlisted after the 16th August, 1901, and serving 
in the mobile militia artillery, the period is to be some period 
prescribed by the regulations not exceeding 84 days (?'). 

Under the provisions of the Militia and Yeomanry Act, 1902 (k), 
the Secretary of State has power to dispense with any statutory 



(a) Militia Act, 1882, s. 8. 
. (6) Recruiting Regulations, paras. 191, 192. 

(c) Militia Act, 1882, ss. 4, 6. This enactment, as to the orders rendered it un- 
necessary to re-enact the provisions of 34 and 35 Viet., c. 86, s. 6, and Militia Act, 
is;*, s. 21, as to the commissions to Militia officers and their ranking with officers of 
the regulars as the youngest of their rank. 

(</) Army Act, s. 175 (3). 

(e) Army Act. s. 71. K.R., para. 217 (v). 

(/) Army Act, ss. 175 (2;, 176 (2), 181 (2). 

(<7) Mililia Act, 1882, ss. 14.15. The period of preliminary drill is (except in 
case of field artillery and submarine mining engineers) sixty-three days. Militia 
Regulations, paras. 171-175. 

(A) Militia Act 1882, ss. 16, 17. As to the period now in force, see Militia 
Regulations, para. 193. 

(i) Militia and Yeomanry Act, 1901, s. 2. 

O'i 2 Edw. 7, c. 39, 3. 1 (1). 



Militia. 203 

requirements as to the training of militia, and in pursuance of this Ch. XI. 

power a reserve division of the militia was formed in 1903 (a). 

Men in the reserve division are not required to undergo the 

ordinary training, but may be called up for instruction, if infantry 

for a course of musketry instruction not exceeding 3 days each 

year, and if belonging to any other arm for a period not exceeding 

14 days every second year (b). 

48. In case of imminent national danger, or of great emergency, Embodi- 
His Majesty in Council may by proclamation order the militia to meat, 
be embodied, the occasion being first communicated to Parliament, 

if Parliament be then sitting, or declared in Council and notified by 
proclamation, if Parliament be not sitting. The proclamation can 
order a Secretary of State to give directions for actually calling 
out some or all of the militia for embodiment. When the militia is 
so ordered to be embodied, Parliament is to be summoned by 
proclamation to meet within 10 days, if it would not otherwise 
meet sooner (c). 

49. The militia, whether English, Scotch, or Irish, -are liable to Liability to 
serve in any part of the United Kingdom. They are not liable to service - 
serve abroad, but can volunteer for service in any place 'out of 

the United Kingdom. Any member of the militia may also 
volunteer to serve out of the United Kingdom for a period not 
exceeding one year, whether an order embodying the militia is in 
force or not at the time (d). A special service section of the militia 
was formed in 1899 under the last-mentioned provision, but has 
been discontinued since 1901 (e). 

50. Hi? Majesty may by proclamation disembody the militia Disembodi- 
whenever lie pleases. There is no statutory limit to the time ment - 
during which the force can be kept embodied, but Parliament 

can practically enforce the disembodiment by refusing to vote 
the money for the maintenance of the force (/). . Until the procla- 
mation is issued, a Secretary of State can give directions from time 
to time for actually calling out for embodiment or for disembodying 
any part of the militia. 

51. An officer of the militia is at all times subject to military Application 
law, and a militiaman is subject to it when the corps to which he f military 
belongs is called out for training or embodied, and during his niilitia. 
preliminary training, and when he is undergoing any training with 

any portion of the regular forces or otherwise, and when he is 
otherwise attached to the regular forces (g). 

The provisions of the Army Act as to the composition of courts- 
martial make officers of the regular forces and of the militia equally 
eligible to sit on all courts-martial, whether to try regulars or 
militiamen (/;). 

52. Enlisted militiamen may, if the orders and regulations so Enlistment 
allow, enlist in accordance with the conditions thereby fixed into 

the regular forces, and a militiaman so enlisting is thereby 
discharged from the militia (i). 

(a) Army Order 36 of 1903. 

(b) See generally Militia Regulations, paras. 595-614. 

(c) Militia Act, 1882, ss. 18, 19. 

(d) Militia Act, 1832, s. 12, as amended by the Reserve Forces and Militia Act, 
1898. For previous Acts empowering the Crown to accept voluntary oft'ers by the 
Militia for service abroad, see Ch. IX, para. 81. 

(e) Army Order 88 of 1901. 

(/) Militia Act, 1882, s. 20. Clode, Mil. Forces, i. 49. 
I (g) Army Act, ss. 175 (3), 178 (6). 

(A) Army Act, ss. 50, 178. Rule 20 (B). 

(i) Militia Act, 1882, s. 11. Militia.Regulations, para. 84 ; Recruiting Regulations, 
paras. 2y-38. 



204 



CONSTITUTION OF THE FORCES. 



Ch. XT. 



53. It is no offence for a militiaman when not embodied to enlist 



Fraudulent 
enlistment 
by militia- 
man. 



Desertion 
and absei ce 
without 
leave. 



~TT . in the regular forces, unless on his attestation he makes a false- 
answer with respect to his belonging to the militia ; but if a militia- 
man when embodied, without fulfilling the conditions enabling him 
to enlist, enlists or enrols himself either in the regular, reserve, 
or auxiliary forces, or in any force raised in India or a colony, 
or enters the navy, he is guilty of fraudulent enlistment ; and if 
when not embodied he, without fulfilling the conditions enabling him 
to enlist, enlists in the reserve or auxiliary forces, or enters the 
navy, he is punishable for making a false answer. Any man 
belonging to the reserve, or yeomanry, or volunteers, or navy, who 
enlists in the militia is punishable for making a false answer ; and 
if he was at the time called out on permanent service or actual 
military service, he is guilty of fraudulent enlistment. A mars 
guilty of fraudulent enlistment as described in this paragraph is not 
only punishable by military law, but (except in the case of enlist- 
ment by a militiaman into the regulars) can be punished by a court 
of summary jurisdiction with fine or imprisonment (a). 

54. A militiaman who fails without excuse to come up for the 
preliminary training, or for the annual training and exercise, is 
guilty of absence without leave, and a militiaman who fails, 
without excuse, to come up for embodiment is guilty, according 
to circumstances, of desertion or absence without leave. A militia- 
man who is guilty of desertion or absence without leave either under 
this provision or under the Army Act, while subject to that Act, 
can be tried either by court-martial or by a court of summary 
jurisdiction, and if tried by the Civil Court, can be sentenced to- 
fine or imprisonment (b). 

55. An enlisted militiaman remains subject to the Militia 
Act until discharged according to the orders and regulations (c). 

56. Certain exemptions of officers and men of the militia are 
mentioned elsewhere (d). 

57. The City of London still has its separate militia, as if it 
were a separate county, and in London the lieutenant's commission 
is granted to a number of persons, as was frequently done before 
the Restoration, and not to an individual, and is not granted 
under the Militia Act, 1882 (e). So also in Cornwall and L>evon a 
regiment of miners, if raised, is to be raised like the militia of a 
separate county (/). A separate militia can be raised for the- 
Cinque Ports, but in fact has not been raised for many years. Special 
provision is also made for the militia of the Isle of Wight (g). 

58. The Imperial Yeomanry consists of 56 regiments, each 
raised in its authorised recruiting area, and each forming a corps 
by itself and not attached to any regular regiment. 

Speaking generally, the account of the government, etc., of the 
militia, given above in paras. 41-45 and 48-55 applies equally to 
the yeomanry, as now constituted under the Militia and Yeomanry 
Acts, 1901 and 1902 (h) ; the chief points of difference between 
the yeomanry and militia will now be shortly dealt with. 

59. Although, like a militia recruit, a recruit for the yeomanry 
is enlisted for the county for which he is raised, the term of 

(a) Militia Act, 1882, s. 26 ; Army Act, s. 13. He also forfeits bounty, under the 
Militia Regulations, para. 396. 

(b) Militia Act, 1882, s. 23. 

(flf) See Army Act, s. 181 (5), and note thereto. 

(e) Militia Act, 1882, ss. 49, 50 See also above, Ch. IX, paras. 64 and 66, notes, 84. 

(f) Militia Act, 1882, s. 49 (5). See also above, Ch. IX, notes to paras. 64, 66. 

(g) Militia Act, 1882, s. 49 (1) (3). The provisions of s. 4H^2) of the Militia Act, 
1882, for a separate Tower Hamlets Militia, were superseded by s. 91 of the Local I 
Government Act, 1888 (ol and b2 Viet. c. 41). 
(A) 1 Edw. VII, c. 11, and 2 Edw. VII, c. 39 ; and the Yeomanry Regulations. 



Discharge. 



Exemp- 
tions. 

Exceptional 
position 
of certain 
localities. 



Imperial 
Yeomanry. 



Points of 
difference 



(c) Militia Act, 1882, s. 9 (3). 



Yeomanry and Volunteers. 205 

! enlistment is under the present regulations only three years (a) ; Ch. XI. 
yeoman, under 49 years of age, may re-engage at the end of the 
last training of their current engagement, or at any subsequent Y^mnanry 3 
period prior to the expiration of their engagement, for a period of and Militia, 
one year from the termination of that engagement (6). 

The provisions relating to the preliminary training of the 
militia do not apply to the yeomanry (c), but a yeoman does not 
rank as efficient unless he has (1) kept the necessary number 
of attendances at drills (in the case of recruits 20, in the case of 
trained officers and men 10) ; (2) fulfilled the conditions laid down 
in the Musketry Regulations as to musketry training and practice ; 
and (3) attended the annual training (d). The statutory period of 
annual training of the yeomanry is, instead of that provided in 
case of the militia (e), a period o not less than 14 nor more than 
18 days in every year ; the present prescribed period is 16 days (/). 

The expenses of yeomanry regiments are in part defrayed out of 
various allowances granted by the Government. The most 
important of these is the contingent allowance granted in respect 
of each officer or yeoman who makes himself wholly or partially 
efficient, and varying in amount as all or only some of the 
conditions of efficiency are fulfilled ; this contingent allowance 
belongs to the regiment, and (unlike a militiaman's bounty) does 
not go to increase the pay of the individual officer or yeoman (//). 

Regiments of yeomanry have still power under the Yeomanry 
Act, 1804 (/;), to make regimental rules, providing for such matters 
as the fining of " non-efficients," and the delivery up of arms on 
leaving the regiment, etc. ; these rules require the sanction of the 
Secretary of State, and, under the present regulations, are required 
to be in the form scheduled to the regulations (i). 

The yeomanry may still act in aid of the Civil Power for the 
suppression of riots, though they cannot be called out com- 
pulsorily for such service, and while so serving are subject to 
military law. They are still called out for actual military service 
under the National Defence Act, 1S88 and are not embodied under 
the enactments relating to the Militia (&). 

There is no restriction on the numbers of the Yeomanry which 
the Crown may raise. 

60. The officers are commissioned by His Majesty in the same officers of 
manner as officers of the regular forces, and rank with officers of yeomanry, 
the regular forces as the youngest of their rank ; with officers of 
militia, according to the date of their commissions ; and have 
precedence over volunteer officers of equal degree (I). 

62. The Volunteers of Great Britain consist of corps raised Volunteers 
voluntarily, whose services have been offered to and accepted by the f & reat 
Crown. One corps, the Honourable Artillery Company of London, 
derives its origin from a fraternity or guild " of artillery of long- 
bows cross-bows and hand- guns," to whom Henry VIII granted a 
charter of incorporation in 1537 (ni). The services of the other 



(a) Recruiting Regulations, para. 190. 
(&) Yeomanry Regulations, para. (3(5. 
(<) 1 Edw. VII, c. 14, s. 1 (a). 

(d) Yeomanry Regulations, para. 130. 

(e) See para. 47 above. 

(/) 1 Edw. VII, c. 14, s. 1 (b) ; Yeomanry Regulations, para. 155. 
(g) Yeomanry Regulations, paras. 269-2S3. 
(h.) See ss. 3 and 56. and as to enforcement of fines, s. 51. 
(i) Yeomanry Regulations, paras. 90-92, Appx. III. 

(k) Yeomanry Act, 1804, s. 23; Yeomanry Regulations, para. 125. Ch.IX, para. 112V. 
(I) 34.fe.35 Viet. c. 86, s. 6 ; K.R. para. 217 (v). As to command, see helow, para. 72. 
(n) Raikes' Hist, of Hon. Artillery Company, i. 17; Clode, Mil. Forces, i. 401; 
Grose, Mil. Antiq. i. 143, et seq. The Volunteer Act, 1863 (26 & 27 Viet, c. 65), does not 
apply to the Hon. Artillery Company, which is regulated by special Koyal Warrant, 
land is not affiliated to the regular artillery. 



Vt"> roNsr; Tl TION ol I'MK. i OKOK.-I. 

ru. x i. ooypa li.i \ 1- been u > i'-. i i \ ivocoptod, oithor uiidw the \> t of i SIM , 

or under (In- Act of I ';(."> (A), no\\ in foieo. 
NiiMiN-i . Q8 Hie numbet of \olnnleeis is uulnml ed, aiul tin- Kin.', ma\ 

"";' ''''''' '' di .band anv . -,-i p . rht> word " COrpB," as applied l.i the \ olnuteer- ., 
>,ilimi . ' 

has rather H UUIn>nl mennim-. tiom tli.it \\lncli it has luthorto luul 

in tins eiiapt'-i The \oiunioor corps, ,.|" whatever si e. is tin 

|<i in, ip.il unil foi all purpo.c. subscriptions aiul propei I \ bolom 
to the corns, aiul \ e ( in it-- QOtUtttMlding olliccr, and are 
RdtuiniatertKl under rules made 1'v tli,- ollirors ami inon >(' tln- 
. ,M|>. . tho uii'H aic rnii'lli'il in ami thr ollit-rrs appoint .'il lollu 
, .M p .. aiul I lie r.'ininaiulin;; Mitvr of t In- ( 'orps has po\\vr to disnu . 

a in, ui 1 1 oiu i hr corps 

\ . maiix ,01 1". \\riv too small to I'oriii a ivj'.imi'iil. pro\ r.-on \\., 
m.ulo I>N tin- \rt ot I Si:;? I'or tjic I'orinatu'ii of ailnuni'.t r.it i\ . 
i >.;! in, 1 ! 1 1 . I'hr ., 1 1'. Mini-lit ; h.i\ <- uo\\ ilisa ppearod, aiul t ho sni.ilU'i 
, ot i". ha\ ,' I'oi-u ,-on,-.oli,la(o>l into a lar>;,-i corps aiul t'oi in v 0111 panii\-> 
in it On t hi-, i-.-n solulal ion tin- piopcrt\ and siili->,-i ipt 1011 ; ol' (ho 
-.,-\ rial i-onst it lu-nt Qorpa ">!, \ , .(ril in tin- (-oiiiina lului;; clVuvr of 
the rv'iisolulatc,! . 01 ps, (o 1>>- in m.i. ,,,! arrordin.; toils rules, hut 
iiMtain evi'i-pt ions \\<-ro mad,' u; l'.-i \onr ot' (ho . onipaiues rorn 1 
>.poiuhn". to die roii'.ultii'iit ,-orps, as i-e^.ai'ds l>o(li the propeii\ ami 
in, MI lu-lon.Mii. 1 . to thein ^,-V 

\olnnt, Ti 1 01 ps nt.i\ make rules tor the management of the 
propeilv, linaneei. aiul ei\il alia: i of the eorps. includlUC uile-> 
toi securing the elli, leno ot inemln-i -. ol i he eorps, aiul ma\ imp 
lines l\>r I he breach ol an\ --lu'li rule The M lies i v.pui e eoiilii m.i ( UMI 
b\ the S,-,ieiai\ of Slate. Tines for the biea, li of a mle .uv 
ie-o\eiab!e on ,omplainl to a eonil of snininar\ jurisdiction ,, 
rxprnv- ,>f i ; 1 i M i ..-. nialU the corps \\ere presumed to be sii}>porl,-d 1>\ 
,'hiiiit,!. \,,' lUU |.,!\ subsci iplions, but tor some vears grants of money am! 
ariUS l'^> - been made by the ( io\ ernnu-iit . on condition^ reinurin- 
the volunteers to make t hemselx es ellicient by a cei tain amount o 
t raiuui; 1 . 

of imminent nat ;onal dan-ier or of .real emci ;'.ency j 
^thc occasion beni;; lirst eommunu-ated to rarliamenl, or. if 
raihamenl be not sittin; 1 ., declared in Council and notified by 
puvlauialionX the Kui;; max order the volunteers to be c:\llo.l <>nt 
tor aclual nulitai \ sei \ ice, and the\ are bound l>> sci \ e in i in-:U 



r.rilain until ielease.1 b\ older made after. i proclamation ilecl 

the occasion to U*ve pMSSed (t) Then 1 is po\\ ( -r to call out part 

onl\. and not oiiU the \\hole, of a coi p-. v 

I ndi\ idnal members of \ olunteer c>rps may a^rce to be liable to 
be called out at any tune for puiposcs of c,-a-i defence in ilic.vt 
r.iitaiu. :>ud the Secretary of Slate may make regulations as to the 
c.illiii'-. out of \olniitcers\\ho ha\e so agreed, ar.l for adaplin ; ; 

ss. i ' of (he Let of 1863 to the OM ^) 

i; lAtlonj (U! V Secretary of Stale has po\\er to ir.ake re;Milati>-ns foi 
' )u ' \oluuteer foue v ^ 



.ji;,.,. in , ). ,,-i-<- : i!,-vl .i . Noluul,-,'r uit':iUi.v t-y .' \ \ . > ,- 

, \ \ Id . i-.-. H -'- ' ; 
i. 11 Ko^ul.-tt on v-l l\ -,,-. V,-!. 1S.M. - 

, ,\ \ -,-t , ,. . .. I .,'.,; II, :\f lUHiMi.U-a )<y <V A i'l Vu-t v- i: S.\ I 

.', N , V ., ' : SW] 1 i,M ! ( ill,' lUK'S :ltv c,\ .1 ,U't-lS. .l!u-\ 

\ N- oiil.-u . \ .n.uu:. t-ul u,>l I'v iiiipris.Minu-iil MV >- (' ;v.vi ,:.,-! I h'r , 
bmiu!-:r\ Jiu >,!'Vf>-ii V, 1 . I - '-' 1 1 ' .V UtVfc 

\ \ , M :ur,.-n,li\l l>\ t-;: X i-M -. 1, I 

^ 1 A \ , - I I 

I ' A \ 

v \ . UV. 






07. 'l'li<' v< ill i n i < i iar< 'i i ; MM miiihii / I., .-. , when being trained f ' 1 '- - 
i.i e ercised with .-my [K.iii'.n <,\ tin regulai ,01 with any portion 

of tin: niihli.i '.vli'-n lubjeot lo niilil.il/ l;i.w ; win n :il.t.i'-h< 'I I',, ,,?',',', 

otln-rwri'.c acting CM ii i, -.1, .-uiy .,i i. iii- regulni fora , -'ml ' 



nr o. , , . , - 

\vli'-li 'ill ;i,i-l.ii;il milit.uy lOTViCd j l>Mt, BXCCpt .'/Inn on ;i'lu;il 

mil ii,;i t y K'-rvn'-, ill'- commanding "Hi' ' i must give 'lu< notice to 

I. In- irOlUnteerS lh;it they "M ;i.l.<.ul, to I. <<;, ,,>< ;:ul.j<l, In 
milit;u y l;iw (".). I'lovr.ion in m;i.'|c For the 'li .' li.n;"- ,,| 
Volunteers, ;nnl foe I.|M? \,i-in\><>r.uy .i>\< I .( .1 V'.lunl<'r v/ln. 
ni 'iii<|in-l..i IIIIH ill wlii n in. I, urnlfC iMilil.ii / l;iw. 
'H. Tin- odiiii. 1 , ;ni- I'.NMHI i',in'(| hy III-! M;i|--,ty in I Iii m, Oflfll 

manner a officei Min regularforc< i, and rani v/ii.d <.iin < of tha 

regular I'ir'i ,I|M- tnilitia, and '.In 1 yeonianry^ an 'in- y>i\n" i f..i, ><\ 



oo. There are no volunteer* in ii<i.unl IM-I...,.J 

70. A ti'-i in.-un nl, i.l;ill li;i.-'. ln-<-n j.i ovnl'-'l I'm I, In- Volunteei '[' 

in I, In- lame rav > i foe f,ln- inilil.in, ; ;unl '.n i I : '.I '.lln 'i .' ',, 
:IIK| in. 1 1 ' '.in ii 1 1 ' 'K.in-'l '/Hi'-' i .'., w I IM i'.< -I v 1 1' -I iri.-iin-nl.l;/ ;i I, 1,1 n- In ;nl 

quarter^ and ;iti.'-inl i'. tin- administration <!' tin- corps -"id i,ln- 
braining "I i.ln- man, 'liny are ;ili subject ' i-ii'- Army A--I,. 

Hol'ln i ji, I' 'I I. ii tin- |.i-| m;i in nl, I. ill ',1 ;i, Viliiiil'-- i i nt |, /. lii-|<,n;' 

i,'. i, in i.'-i i ii.'ir i.-i i regiment /. ii.iim whose district th< headouartei '-I 

IUn- '-'.i|.: an ituate (0), ''pi, in t,ln- caM <>( non-commw n.m-'l 
illi'-i i;i i.l l.ln- ( iu;ii''l , '.vlio ;H'- not to IK: I .r;m I' i . 'I to I, In- I < i i i ' 01 1.1 1 
regiments. 

71. The requiremeni i,li;ii, '-'.m i -. ncn i.i;il Cor trying man belonging '' 

I'. I, In- yom;im-y or volnnl.' i l.onld COnSUt ol' ;,i.,ii,;iiir. 1,1 ' 

voluni.'-i-i oiin ' i i only, was abolished in 1879 'nif,;i. i;.ni< ,i I'M,- < -<iui. 

r'-(|ilirr.,( l,li;it '.n lln- l,ri;ilol ;i, |<-i .on belonging to lln- ;< u 1 1 1:1 1 y 
forces, "in- nn nil.- . ol tin- court, ;;li;i,ll, if |.i ;n I n ;i 1 ,!<-, l.'-loin' I o I Ir 
forci-M, ;uid to tin- ;-'.:inn- l)i;i,in-li ;i;i tli;i,t to vvlii'li li, . ! 

IM Ion;- f,/, 

72. The command to be exercised I'.y volunteer offlcei ovei <li' OommutA 
regulai forc< .'"I'l by regular officers over volunteers 'I' 

rc;oil;i,l,ioMti in;i,(|- l.y l.ln I. ing ' ) 



In, Army A'-l,, <-. IV, (''.). A'; I,-, l.lif j,<ri<,'l 'luring wl,i':li (','/ UH 

imiii;ii y i.i-.v. ' ' .!',! ',11 Part V of the Army Act, 

Id,) ;;-t A. ::., v.. -i. .- .. , v. i; pan Iii] ' / 
( , K I;, pan 137 

I'/, Army Ai-l,, H. Mi M, . IO,|. :-(, Mi, 

(- ; Army Arl, |, ,1 ; K.ll., |,;,i,i. ;:I7 ft). 



208 



CHAPTER XII. 



How far in 
England a 
coldier is 
divested of 
civil rights 
and liabili- 
ties. 

Illustra- 
tions. 

Inability to 
change 
domicile or 
settlement. 

Special pro- 
vision as to 
mainten- 
ance of wife 
and family. 



Restrictions 
on creditors 
of soldier. 



RELATION OF OFFICERS AND SOLDIERS TO CIVIL 

LIFE. 

1. The English law on this subject differs from that of some 
foreign countries, and a man who becomes a soldier does not cease 
to be a citizen (a). If he commits an offence against the ordinary 
criminal law, he can be tried and punished as if he were a 
civilian, and serious liabilities are incurred by any officer who 
refuses to deliver him up to the civil magistrate on application (6). 

2. On the other hand, his civil rights and duties are necessarily 
subject to some limitation for the purpose of enabling him to f uliil 
his engagement to serve the Crown (c). Thus he cannot, while 
in the service, change his domicile, or change the parish of his settle- 
ment (d). If he marries without the consent of the military 
authorities, the marriage is legal, but his wife will not be provided 
for by those authorities, and he is not punishable for deserting 
or neglecting to maintain his wife or family, or leaving them 
chargeable to the union. Special provision has, however, been 
made for proceeding against him to compel him to maintain his 
wife and family or bastard child, and for the deduction of a certain 
sum from his pay for the purpose of such maintenance (e). 

3. Certain restrictions have also been imposed on the creditors 
of the soldier, so as to prevent the Crown losing his services. He 
cannot be arrested or compelled to appear before a court on account 
of any debt, damages, or sum of money under '301. ; but the 
exemption applies to the person not the property of a soldier, and 
a creditor may sue and have execution, so long as he does not touch 
the person, pay, or military equipment of the soldier. To avoid 
injustice to the public from this exemption, the proclamation of 
" crying down credit" has been adopted, originally under an 
Article of War, and now under the King's Regulations (/). An 
officer or soldier is unable, legally, to charge or assign his pay or 
pension (g) 

(a) Clode, Mil. Forces, i. 144 ; ii. 143. As to the duty of soldiers to perform 

their part as citizens in repressing breaches of the peace, Chief Justice Sir James 

Mansfield thus spoke, in 1802 : " Since much lias been said about soldiers, I will 

'correct a strange mistaken notion which has got abroad, that because men are 

' soldiers they cease to be citizens ; a soldier is gifted with all the rights of other 

' citizens, and he is as much bound to prevent a breach of the peace or a felony, as 

' any other citizen If it is necessary for the purpose of preventing 

' mischief, or for the execution of the laws, it is not only the right of soldiers, but it is 
' their duty to exert themselves in the assisting the execution of a legal process, or 
' to prevent any crime or mischief being committed. It is, therefore, highly im- 
' portant that the mistake should be corrected, which supposes that an English- 
' man, by taking upon him the additional character of s\ soldier, puts off any of 
' the rights or duties of an Englishman." JJurdett v. AUiott, 4 Taunt, p. 401. 

(6) Army Act, ss. 39, 41, 1(52. Under the Jurisdiction in Homicides Act, 1862 
<25 & 26 Viet. c. 65), a person subject to military law who is charged with the murder 
or manslaughter of any other person subject to military law in England or Ireland, 
may be tried in London or Dublin more speedily than under the ordinary law. 

(c) Clode, Mil. Forces, i. 206. 

(d) Clode, Mil. Forces, ii. 37, 38, and the legal cases there cited. 

(e) Army Act, s. 1J5. 

(/)Army Act, s. 144 ; K.R., para. 442. 

(g) Army Act, s. 141. As to the appropriation of a portion of the pay or pension 
of a bankrupt officer to his creditors, see s. 53 of the Bankruptcy Act, 188.3 (47 & 
48 Viet. c. 52 and In re Ward, L.E. [1897] 1 Q.B. 



Privileges of Officers and Soldiers. 209 

4. An officer or soldier on actual military service, even though Ch. XII. 
snot of full age, has power to dispose of his personal estate by a w - n "7~ 
^nuncupative will, i.e., a will without writing, declared before a mr<Vs ami 
sufficient number of witnesses (a). Probate of the will and letters soldiers. 

of administration of any common soldier, who is slain or dies in 
"the service of His Majesty, are exempt from stamp duty (6). 

Special provision has been made for collecting and realising the 
effects of a deceased officer or soldier, and paying certain military 

debts thereout (c). 

5. Officers are entitled to an exemption from licence duty for Exemption 
any servant who is a soldier in the army, and is employed by the sg^^ 1 " 
officer in accordance with the regulations of the service (d). from licence 

duty. 

6. Every non-commissioned officer and soldier whilst on service, privileges 
Is entitled by statute, independently of any post-office regulations of soldiers 
for the time being in force, to send or receive letters not exceeding [" [etfers." 
half an ounce by post for one penny prepaid, but any foreign postage 

in addition must be paid. Where a letter is re-directed, an 
officer as well as a non-commissioned officer or soldier is entitled to 
receive the letter free from any postage, foreign or other, charge - 
able in respect of the re-direction (). 

7. Officers and soldiers have not any personal exemption from Exe-nptions 
-any loc.J rates or tolls, but where an odicer occupies property in fr m 1 " c * 1 
respect of liis office the occupation is treated as occupation by the tolls. 
Crown, and he is not liable to be rated in respect of that property, 
inasmuch as the Crown is exempt from local rates. If, therefore, 

the occupation is for his own personal beneht, and not for the 
'benefit of the Crown, an officer will be liable to be rated like any 
other individual. Similarly, officers and soldiers of the le^ular 
forces, when on duty, are exempt from tolls ( /), but are not so 
exempt when travelling for their own purposes only. 

8. Officers of the army, militia, or yeomanry, while on full pay, Exempli -n 
are exempt in England from serving on juries (y). This exemption fro ? 1 service 
is an absolute exemption from serving on a coroner's jury, but as & c . 
regards a grand jury or common jury is qualified, as it is only an 
exemption from being placed on the jury list, and if an officer is 

.on the list he is bound to serve notwithstanding his exemption. 
Care must therefore be taken to claim the exemption at the time 
when the lists of jurors are made out in August aud September. A 

I soldier is entitled to an absolute exemption from serving on any 
jury (A). Officers on full pay or half-pay are also exempt from being 
compelled to serve any municipal oihce iu England (i). Officers 

lot the army, alt hong 1 1 upon half pay, and pers ins in the reserve, 

(a) This privilege was originally reserved to soldiers and sailors by 29 Cha. II, 

1C. 3 ; it now depen ;s on 7 Will. IV. and 1 Viet. i;. 2 ., s. 11. As to whena soldiei is on 
actual military service, see lit thu ooorfv of Hiscw.i, L.K. [19J1J P. 13, and ifatticarrt 
i'. /v/iee. L It. L'Hi*] P. HI; and as to what may amount to a valid testamentary 
document, ser In. ike i^n',dx nf ,1'c.tt, L. R [U03J P. 2i<J. 
(6) oo Geo. [II, u. 1-4, sclied. pait 111. 
<c) Regimental Debts A.-t, 1~93(.*5 Viet. c. n). 

(d) 32 & :i3 Viet. c. 14, s. IH (-) Ihe exemption from the licence duty for keep- 
ing a horse, vv .ich is given by the same Act, is rendered unuecessari' by the repeal of 
the licence duty by .>, & is Viet, c 16 

(e) 3 &. 4 Vici, c tfti, s. 53 ; 10 i 11 Vici . c. .-5, s. 7 ; 2-1 & 24 Viet. c. 65 ; 38 & 39 
Viet. e. 22, s. 7 ; K.K., i aras. 1354- 13;' 3, ba.^ed on a letter fro.u the treasury to tha 
\Var O ce ot Intli July, l^o. 

(f) Army Act, s. 143. The Local Acts regulating turnpike roads, &c., usually 
Icontain like exemptions. Tnere aiv no* n.< tura .IK<J r..aus left. The Volunteer 
|Acn 1-stvt. (s. 45) and the Yeomanry Act, IcHM (s. 1^) contain similar provisions as to 
Jtne volu ,teer.- and yeomanry. 

(g) & M4 Viet. c'. 7., s. 9, and schedule. 
(h) Army Act, s. 147. 

(i) 45 & 4rt Viet. c. 50, g. 253. 

(M.L.) O 



210 



RELATION OF OFFICERS AM) SOLDIERS TO CIVIL LIFE. 



Ch. XII. 



Eight to 
vote at 
Parliamen- 
tary elec- 
tion, and to 
sit in 
House of 
Commons. 



Military 
Savings 

li.i 11 ks 



militia, and yeomanry forces, are also exempt from serving 
office of overseer (a). The above provisions may have been made for 
the purpose of enabling an officer to fulfil his military duties, but. 
the provision of the Army Act which disqualifies an officer on the 
active list from holding the office of sheriff, mayor, alderman, or 
any municipal office in any place in the United Kingdom, was- 
doubtless originally enacted from jealousy of tlie military forces, 
acquiring an} undue influence by holding influential offices. This 
provision, however, does not render an officer ineliyible for 
membership of a county council (/>). Officers on full pay are- 
prohibited by the King's Regulations from joining the directorate 
of any public or other company w thout permission from the 
War Office; and t'iey, as well as soldiers, are prohibited f rom | 
acting either directly or indirectly as agents for any company, 
firm, or individual engaged in trade (c). 

9. An officer or soldier has the same right as a civilian to vote 
at an election for members of Parliament, and if himself elected, 
is entitled without leave or order to attend the House of Com- 
mons (t/). Officers who may be elected members of the House r 
of Commons will be placed on half pay (e). The acceptance 
by a member of the House of Commons of a first commission 
in the army vacates his seat, but the acceptance of a new com- 
mission by a member Already a commissioned officer does not 
vacate his seat ; and it may be that an officer in the army will 
not vacate his seat by the acceptance of an office which, if filled by 
a civilian, would vacate the seat(/"). An officer or soldier, if in? 
the United Kingdom, ought to be allowed, if he wishes, to go to the- 
place of election and record his vote, unless military exigencies' 
render it impossible (</). But soldiers not being electors are 
excluded, in (Jreat Britain, though not in Ireland, from being 
present at places of election (/<). 

10. In conclusion may be noticed the Act which enables military 
savings banks to be established for the purpose of military 
deposits from non-commissioned officers and soldiers, under 
regulations made by the Secretary of State for War, with the 
concurrence of the Commander-in-Lhief and of the Treasury (i). 



(01 Steer's Parisli Law (6th Edn.), pp. 105, 361. E 

(b) Army Act, s. 1 46. 

(c) K.Ri, para. 448. 

((/) Cloiie, Mil. Forces, i. 192, 195. The statement that an officer or soldier is 
entitled without leave to go to a place of election and re-cord his vote appears to 
have lieen i>a*ed upon 10 & 11 Virt. c. 21, which repealed the former Act (S Geo, 
2. c. 3"). Those Acts never applied to persons out ot the L'nited Kingdom, and as 
regards persons in the United Kingdom, appear to have linen meiely intruded to save- 
from the enactments prohibiting soldiers heing present at a place of election, thos& 
of tJifiri who were entitled to attend and vote. 

(e) A.O. i5.'ot lUlL-i. 

(f) rt Anne, c. 41, s. 27 (c. 7, s. 28 in ordinary editions). Clode, Mil. Forces, L 
pp. 192, 19.'{. 

\y) As to right to vote in respect of occupation of quarters, see Atkinson v, 
Coilnnl, L.K. IK Q.li.D. i54 ; Spittrti/ v. Bro^k, L.K. 1H Q..B.D. 42ti. 

(h) In & il Viet. c. i!l ; 2ti & -'7 Viet. e. 12. Fur the history of the old practice of 
ke> pmg so diers u .t of assize towns during the holding of aasiites, see Clode, MiL 
Forces, ii. pp. afis-^05. 

(t) 22 & 23 Viet. C. 20. 



211 



CHAPTER XIII. 



SUMMARY OF THE LAW OF RIOT AND 
INSURRECTION. 

1. The object of this chapter is to give such an explanation of the Oi>.jectof 
law relating to unlawful assemblies, riots, and insurrections as may cna P ter - 
be useful to officers when called upon by the civil authorities to 

assist them in suppressing disturbances (a). 

2. The first question is, What is an unlawful assembly? for the Definition 
mere gathering together of people is no crime in the eye of the law. ^ 

" There is no doubt that the people of this country have a perfect 
" right to meet for the purpose of stating what are or even what 
" they consider to be their grievances ; that right they always have 
" had, and 1 trust always will have ; but in order to transmit that 
" right unimpaired to posterity, it is necessary that it should 
" be regulated by law and restrained by reason " (b). 

An uniawiul assemMy, then, is any meeting whatsoever of great 
numbers of people with such circumstances of terror as cannot 
but endanger the public peace and raise fears and jealousies among 
the Kmg''s subjects, as where great numbers complaining of a 
common grievance meet together armed in a warlike manner, in 
order to consult together concerning the most proper means for the- 
recovery of their interests ; for no one can foresee what may be the 
event of such an assembly (c). The commission of an act of violence- 
by any one or more of those assembled, is not necessary to make- 
the assembly unlawful, if its character and circumstances are such 
as to be calculated to alarm, not only foolish or timid people, but 
persons of reasonable firmness and courage (d). If tlie assembly 
is for a lawful purpose and with no infentioii of carrying out that 
purpose in an unlawful manner, the assembly is not an unlawful 
assembly, even though the persons assembling know that the 
asseuib y is likely to be insisted l>y others (<?). 

3. Accordingly, in the case of a Chartist meeting at Newport Example ot 
in 1839, an assembly was held to be unlawful in which from 300 to whatfe'not 1 
1,000 persons were gathered together, and in respect to which an unlawful 
evidence was given that the speakers endeavoured to incite the assembly, 
people to di.~ariection and the use of physical force. No actual 
outrage was perpetrated, but numbers of persons armed with 

sticks were proved to have marched in procession, and several 
witnesses swore that they apprehended danger both to life and 
property (/). On the other liaud, a peaceful meeting of the Salva- 

(a) Riot is a common law ofiVnce . the term insurrection is used in this chapter 
as a description of tlie offence that is technically called " levying war against 
the king. " 

(6) Charge of Baron Alderson to the Grand Jury in R. v. Vinrent, 9 C. & P. 95. 

(c) HawKins, bk. i. ch. Ixv. sec. w. See also K. v. Vincent, ante; K. v. Neale, 
ib., 431. 

(d) See the summing up of haron Alderson in R. v. J r inrent, 9 C. & P. at p. 109. 

I(e) BKivty v. Gi lb,<n>.s, L.ll. H y. h.D. 30-*. The principle established by this 
case does not appear to lie attVctid liy the lat'r decision in Wise v Dunning. L.R. 
[lW'2j 1 Jv.ii. hi ; s >e Dicey. l>aw of tlie Constitution (6th Edn.), A|ip. Note V.. p. 448. 
(/) It. v. Vi ieiil, 'inte\ and see It. v. Aeaie, aide, in which the law is similarly 
laid down by Mr. Justice Littledale. 

(M.L.) o 2 



212 



SUMMARY OF LAW OF RIOT, ETC. 



Ch.XIIJ. 



Definition 
of "riot." 



Examples 
of riot. , 



Definition 
of "insur- 
rection." 



Examples of 
insurrec- 
tion. 



Case of R. 
,v. Frost. 



tion Arniy is not an unlawful assembly and cannot be made so by 
the knowledge that the assembly will be resisted and a breach of 
the peace ensue (a). 

4. A riot is a tumultuous disturbance of the peace by three or 
more persons assembling together of their own authority with an 
intent mutually to assist one another against any who oppose 
them, in the execution of some enterprise of a private nature, 
and afterwards actually executing the same in a violent and tur- 
bulent manner to the terror of the people. It is immaterial whether 
the act done be unlawful or not, but there must be an act (b). 
Doing the act in a manner calculated to inspire people with terror 
is punishable, whether it be lawful or unlawful ; but where the 
object of the assembly is lawful, it requires far stronger evidence 
of the terror caused by the means vised, to induce a jury to return 
a verdict of guilty, than if the object were unlawful. 

5. For example, persons assembling together on a racecourse and 
tumultuously pulling down a booth, or gathering together in a 
tumultuous manner and breaking threshing machines, are guilty of 
a riot. Again, a number of persons assembling for a lawful object, 
such as pulling down an inclosure which has been illegally put up, 
will be guilty of a riot, if their assembling is accompanied with 
circumstances of actual force or violence calculated to inspire 
people with terror. On the other hand, if an assembly of persons 
be not accompanied with such circumsiances as these, it can never 
be deemed a riot. 

6. An insurrection differs from a riot in this that a riot has 
in view some enterprise of a private nature, while an insurrection 
savours of high treason, and contemplates some enterprise of a 
general and public nature (c). An insurrection, in short, involves 
an intention to levy war against the King, as it is technically 
called ; or otherwise to act in general defiance of the government 
of the country. 

7. For example, a mob assembling to pull down or burn a cotton 
mill, because the proprietor is obnoxious to them, are engaged in a 
riot. If the object were to attack a barrack or seize a store of 
arms with a view to arm themselves and make war against the 
government, they would be in a state of insurrection. 

8. In the case of ti. v. Frost (d), the insurgents, numbering about 
5,OiiO, were armed, many with guns or pikes, some with swords, 
others with mandrils (a kind of pickaxe for cutting coal), and others 
with scythes fixed on sticks, or with bludgeons. They marched to 
Newport in a sort of military order, and dangerously wounded a 
.person sent out to reconnoitre. On arriving at Newport, they 
^attempted to force their way into the Westgate Inn, where troops 
had been stationed by the mayor, and called upon the soldiers to 
surrender. On the reply being gi\en, "No, never," they fired on 
the soldiers, who after a time returned the fire, when the insurgents 
dispersed. 

In this case it was contended on behalf of the prisoners that the 
object of the insurgents was to procure the liberation of certain 



(ni >eep. 211, Note (e). 

(tA Hawkins, I,k. 1, ch. Ixv. sec. 1 ; and see 7?. v. Graham. Hi Cox C.C. 422. 

(elChaige of Huron Alclerson to the Grand Jury in K. \. indent, 9 U. & P. 94. 
See lord Mansfield's charge on the trial ot Lord Geoige Gordon in 1781,21 State 
Trials, 'i-14. Lord Geoige Gordon was indicted for high treason, but acquitted on the 
ground that his acts, in the opinion of the juiy, did not amount to constructive 
levying of war against the Crown. 

('() v< O & f. 129. This case also arose out of the Chartist movement in 1839, 
and should be compared with K. v. I'inccnt, ante. 



Definition of Unlawful Assembly, Riot, etc. 213 

prisoners who were in custody at the Westgate Inn, and to obtain Ch. XIII. 
better treatment for a prisoner named Vincent. To this it was 
replied that the intention of the prisoners was to take possession 
of the town of Newport by surprise, terror, or force, and to use 
th it possession as the means of raising a rebellion. 

It was admitted tlint, if the first of the above objects was the 
real one, the prisoners were not guilty of high treason, but 
evidence was given that the second was their real jmrpose, and that 
they had been planning an insurrection for some time. Accord- 
ingly, they were found guilty of high treason ; in other words, the 
enterprise was considered to be an insurrection, and not a riot. 

9. It will be seen from the foregoing definitions aud examples Distinction 
that an unlawful assembly and a riot are different stages as J^"^ 11 un ~ 
it were of the crime of insurrection. An unlawful assembly is an assembly, 

(assembly which inav reasonably be apprehended to cause danger !" Iot ' a ' Kl 
,i J i ,. , ,. ll * ,1 . .- insurrec- 

to the public peace, through the action ot the persons constituting tiou- 

the assembly. As soon as an act of A'iolence is perpetrated it 
becomes a riot ; while if the act of violence be one of a public 
nature, and with the intention of carrying into effect any general 
political purpose, it becomes an insurrection or rebellion, aud not 
a riot (a). 

10. As might be expected from the different character of the Distinction 
meetings, the offence of taking part in an unlawful assembly, a riot, n^t" 18 * 1 " 
or an insurrection involves very different degrees of guilt and very- 
different punishments. A man convicted of being at an unlawful 
assembly, or of taking part in a riot, is guilty of a misdemeanour, 

and is punishable at common law by fine or imprisonment, or both ; 
but by statute there is this wide difference made between the two 
offences, that in the ease of riot hard labour may be inflicted, 
whilst in the case of an unlawful assembly the imprisonment is 
without hard labour (6). A participator in an insurrection may 
be held guilty of treason and be capitally punished. 

11. The offence of taking part in a riot, or an insurrection, is Additional 
independent of any additional crime which the persons assembled usually in- 
may either themselves commit, or of which they may be held to cident to 
be guilty as principals, by reason of their forming part of the mob [^ 
which commits such crime. For example, a riot seldom takes place tic 
without the rioters breaking into houses or otherwise destroying 
property. An insurrection almost always involves murder or 
attempts to murder. All persons present at the commission of 

such crimes are equally principals in the breaking into houses, 

(a) Baron Alderson in his charge to the Grand Jury, delivered at the Monmonth 
Assizes in 1*3H (9 C. & P. 94 n.), cited the following observations ot Mr. Justjce 
Bayley : " If the persons who assemble together say, ' We will have what we 
" want, whether it be according to law or not,' a meeting for such a purpose, how- 
ever it may be masked, if it be really for a purpose of tiuit kind, is illegal. If a 
meeting, from its genera! appearance, and from all the accompany ingcireumstances, 
is calculated to exci'e terror, alarm, and consternation, it is 'generally criminal 
and unlawful." Baron Alderson continued, "These are, as 1 take it, th" "lear 
principles of law, an unlawful assembly differing in this resnect from p - ; Dt, that 
a riot must go forward to the perpetration of some act which tlieunlav fui assembly 
is calculated to originate and inspire. Something must be execu'ed in a turbulent 
manner to constitute a riot, but in these cases it must be some enterprise of a 
private nature, because if the enterprise be of a general and pnono nature, it 
savours of high treason, and there is no doubt that if yon find these persons 
assembled together by delegates dispersed from any central .jurisdiction in this 
kingdom, and those persons so meeting together in consequence of a delegation 
from a central body commit any act of violence for the purpose of carrying into 
effect any general political purpose, they run the risk of being charged with high 
treason." 

(b) 1 Hawk., c. 65, a. 12. Hard labour may be given, under 3 Geo. 4, c. 111. 
As will be seen hereafter, rioters remaining for an hour after the Kiot Act has 
been read become felons. 



214 



SUMMARY OF LAW OF RIOT, ETC. 



Ch. XIII. 



Suppression 

assemblies^ 
riots, and ' 



Degree of 



pression of 
unlawful 



Suppression 



Extract 

charge of 
Chief 

innda? 



destroying the property, murder, or attempt to murder, although at 
the time some of them take no actual part in the transaction at all : 
but practically the extreme measure of punishment is usually 
awarded only to the leaders (a). 

12. The law would fall far short of what is needed for the 
preservation of society if it did not allow all necessary measures to 
be taken for dispersing or otherwise putting an end to unlawful 
assemblies, riots, and insurrection. The law accordingly declares 
that an unlawful assembly may be dispersed, although it has 
committed no act of violence ; for it is better that individuals should 
be stopped before they proceed to outrage and violence ; and a 
small amount of punishment in the first instance will probably 
save a yreat amount of crime afterwards (6). 

13. So far the law is clear ; but a grave practical difficulty arises 
as to the degree of force to be used in effecting the dispersion. If 

_ '- Til /* 1 

the assembly is verging on a riot, and the demeanour or those 
present shows that they are bent on serious mischief, it may be 
the bounden duty of the magistrates to take immediate steps 
to disperse the assembly, even using force if necessary. If, on 
the other hand, the assembly is unlawful but in a slight degree, and 
there is no immediate apprehension of violence, it can scarcely 
be justifiable to attempt to disperse it by force, or wise, as a rule, to 
display force. No positive rule can be laid down, but different 
cases must depend on their own circumstances. If resort be had 
to force, the principle is that so much force only is to be used as 
is sufficient to effect the object in vit-w, namely, the dispersion 
of the assembly ; and if injury results to any person from the use 
of that force, the question to be ti ied is whether the means used 
were or were not more violent than the occasion required (c). 

14. In dealing with riot, the law speaks more decidedly. Every 
magistrate, sheriff, constable, and other peace officer is required to 
do all that in him lies for the suppression of a riot, and each has 
authority to command all other subjects of the King to assist him 
in that undertaking. Every man is bound, when so called upon, 
to yield a ready and implicit obedience, and do his utmost to assist 
in suppressing any tumultuous assembly (</). 

15. " If the riot be general and dangerous, every subject may 
" arm himself against the evil-doers to keep the peace. Such was 
" the opinion of all the judges of England in the time of Queen 
" Elizabeth in a case called ' The case of Arms' (Popham's Rep., 
" 121) ; although the judges add that it would be more discreet for 
" everyone in such a case to attend and be assistant to the justices, 
" sheriffs, or other ministers of the King in doing this. It would 
" undoubtedly be more advisable so to do ; for the presence and 
" authority of the magistrate would restrain the proceeding to such 
" extremities until the danger was sufficiently immediate, or until 
" some felony was either' committed or could not be prevented 
" without recourse to arms ; and, at all events, the assistance given 
" by men who act in subordination and concert with the civil 
" magistrate, will be more effectual to attain the object proposed 
" tliaii any efforts, however well intended, of separated and 
" disunited individuals. But if the occasion demands immediate 
" action, and no opportunity is given for procuring the advice or 

(a) See H. v. Howtl, C. & P. 437. 

(</) Haron Alderson in R. v. Vincent, 9 C. & P. 94. 

(<:) K. v. ,VCTi/e, 9 C. & P. 435. See also Report on he Peatherstone Riot (Parl. 
Pap. 1MH-94, C. 7-'34), p. 10, and below, p. 220, Note. 

(d) Charge of Chief Justice Tindal to the Grand Jury in 1832, quoted in R. v. 
Finney, 5 C. & P. 262, note. 



Supp?~ession of Unlawful Assembly, Riot, <&c. 215 

** sanction of the magistrate, it is the duty of every subject to act Ch. XIII. 
"' for himself and upon his own responsibility in suppressing a 
"" riotous and tumultuous assembly ; and he may be assured that 
41 whatever is honestly done by him in the execution of that 
"*' object will be supported and justified by the common law ' (). 

16. With regard to the circumstances which may justify the use Use of 

of deadly weapons by those engaged in endeavouring to disperse a ^ e e ^!|^ ns by 
riot, Chief Justice Tindal, in the charge already quoted, made the those 
following observations (6) : "lucre is one case which stands in a engaged m 
different situation troni the rest, and to which it may be proper riots? 
(that I should call your particular attention I mean the case of 
James Cossley Lewis, who is at present at large upon his recog- 
nizance, but who stands charged, upon an inquest before the 
coroner, with the offence of manslaughter, in shooting a boy of the 
name of Morris. It appears from the depositions before the 
coroner, that Lewis was acting in aid of the civil authorities in 
assisting to clear the streets, after proclamation had been regularly 
made, requiring the rioters to disperse themselves, and after they 
Jiad continued together for more than an hour from the time of 
making proclamation. It appears, also, by the testimony of the 
witnesses that the pistol was not aimed at the boy who was 
'unfortunately struck by tlie ball. The nature, however, of the 
offence committed by Lewis will not depend so much upon that 
fact as upon the circumstances under which the pistol was 
originally discharged. If tlie firing of the pistol by Lewis was a 
s-ash act, uncalled for by the occasion, or if it was discharged negli- 
gently and carelessly, ttie offence would amount to manslaughter, 
but if it was discharged in the fair and honest execution of his duty, 
in endeavouring to disperse the mob, by reason of their resisting, 
the act of firing the pistol was then an act justified by the occasion, 
under the Riot Act before referred to, and the killing of the boy 
would then amount to accidental death only, and not to the offence 
of manslaughter." 

17. There is no doubt that a person lawfully engaged in trying In appro-, 
to apprehend a rioter is justified in using any degree of force to ^^^ ol 
protect himself, or to overcome resistance. It is, however, some- 
times impracticable to attempt the apprehension of individuals, 
without using means calculated to occasion bloodshed, and tlie 

firing on a mob (which is what using deadly weapons practically 
means) can only be excused by the necessity of .-elf protection, or 
t>y the circumstance of tlie force at tlie disposal of the authorities 
'being so small that the commission of some felonious outrage 
such as the burning of a mill, or the breaking open of a prison, 
or the attacking of a barrack cannot be otherwise prevented (c). 

(a) Charge of Chief Justice Tindal, quoted in R. v. Knnen, 5 C. & P. 262, note. 
From early times the duty ot sheriffs and magistrates to suppress riots and appre- 
hend rioteis, and the obligation of the people of tlie county to assist them have 
tjieeii laid down and emou-ed by statutes Some of these, an, for example 15 
Rich. 11, c. 21 (,1-^D, 13 Hen. IV, c. 7 (Mil), 2 Hen. V, sb. 1, c. 8 (1-iU), are 
still unrepealed, and to some extent, at all events in lorce. 

(b) H. v. / iimey, f> C. & P. 21, note. 

(c) In the Six Mile Bridge cate or riots at the Connty C!are election in 1852, an 
escort of two officers, two Serjeants, and forty n.nk and tile, employed to protect 
voters going to poll, were attacked and stoned by the mob. Tlie soldiers tired, 
without orders from their officer*, but, us was subsequently sworn by tue com- 
manding officer, in dtfeiicr oj ihnii o lives, and ki:led~two or three of the n.ob. 
Indictments were preferred agaimt those vho tired, or were supposed to i ave tired, 
iut the bills were thrown out by the Grand Jury. Tlie chaige of Mr. Justice 
Perrin to the Grand Jury in this case appears virtually to ignore the riotous 

character and unlawful object of the mob, and the fact of the unprovoked attack 
<u the soldiers. 



216 



SUMMARY OF LAW OF RIOT, ETC. 



Ch. XIII. 

In suppres- 
sion of in- 
mrrections. 



Account of 
Riot Act. 



Effect of 
>roclams- 
.ion uuder 



?onnof pro- 
slamation. 



Effect of 



ifter pro- 
clamation. 



18. The observations made above with respect to the duty o 
suppressing riots apply still more strongly to insurrections, or " riots- 
which savour of rebellion." Tn such cases the use of arms may be- 
resorted to as soon as the intention of tlie insurgents to carry 
their purpose by force is shown by open acts of violence, and it 
becomes apparent that immediate action is necessary. 

19. The expediency of arming the civil power with authority 
to put an end to serious risings, before the commission of actual 
outrage, was doubtless tlie motive which led to the passing of the 
Eiot Act (1 Oeo. I. stat. 2, c. 5) in 1715 (a). 

20. The first section enacts that, "If any persons, to the number 
of twelve or more, being unlawfully, riotously, and tumultuously 
assembled together, to the disturbance of the public peace .... 
and being required or commanded by any .... justice, . _ 
. . . . by proclamation to be made in the King's name, in. 
the form hereinafter directed, to disperse tliemselves, and peace- 
ably to depart . . . , shall, to the number of twelve or more. 
..... unlawfully, riotously, and tumultuously remain or 
continue together for one -hour after such command or request made 
by proclamation." they shall be adjudged felons. Suppose, there- 
fore, a riot to have commenced, and the authorities present to be. 
of opinion that serious consequences may be apprehended if the 
rioters are not dispersed witldn a limited time, it would be their 
duty to make the proclamation required by this Act ; and if 
twelve or more persons remain together riotously and tumul- 
tuously after the expiration of an limr tliey may be treated as 
felons, and will be subject to the punishment of penal servitude 
for life or not less than tliree years, or to imprisonment with or 
without hard laboxir, not exceeding two years. 

21. The form of the proclamation and the mode of making it 
are provided for in the next section, which directs the justice, 
among the rioters, or as near them as he can safely come, to com- 
mand silence, and then with a loud voice to make proclamation in. 
the following words : 

"Our Sovereign Lord the King chargeth and commandeth alt 
" persons, being assembled, immediately to disperse themselves,. 
" and peaceably to depart to their habitations or to their lawful 
" business, upon the pains contained in the Act made in the- 
" first year of King George the First, for preventing tumults andi 
" riotous assemblies. 

" God save the King " (b). 

22. Further, section 3 provides that if the persons so riotously- 
tumultuously assembled, or twelve or more of them, remain 

together for one hour after the proclamation, they may be seized" 
and apprehended by any justice or person assisting him ; and that 
if any of the persons so unlawfully assembled happen to be killed, 
maimed, or hurt in the dispersing, seizing, or apprehending,. 
or endeavouring to disperse, seize, or apprehend them, by reason 
of their resisting, then the justices, constables, and persons assisting' 
such justices and constables shall be fully indemnified for any 
such killing, maiming, or hurting. Persons hindering the reading- 
of the proclamation, and if the proclamation be hindered, persons' 



(a) Similar Acts liad previously been passed : 3 &. 4 Ed w. VI, c. ft; 1 Mar. sess. 2, c. 12. 

(b) In K. v. Child, 4 C. & P., 442, it was derided that if in reading the pro- 
clamation from tlie Riot Act tlie magistrates omit to read the words " God save the 
King " at the end of it, persons remainins together for an hour after such reading ol 
the proclamation cannot be convicted under s. 1 of the Act. 



Account of Riot Act. 217 

not dispersing within an hour after the hindrance, suffer the same Ch. XIII, 
punishment as persons who remain together for an hour after the 
reading of the proclamation (a). 

23. In the riots excited by Lord George Gordon in 1 780, the mob ^ e ^* "V^a 
were allowed to proceed to great excesses without nny interference hefore the 
by the civil or military authorities ; and this appears to have been proclama- 
allowed under the impression that until the proclamation in the R^'t Acti 
Riot Act was read the dispersion of the rioters would be illegal, read. 

To correct this impression Lord Loughborough made use of the 
following language : 

"It has been imagined because the law allows an hour for the 
" dispersion of a mob to whom the Riot Act has been read (ft) by 
" the magistrate, the better to support the civil authority, that 
" during that period of time the civil power and the magistracy are 
" disarmed, and the King's subjects, whose duty it is at all times 
"to suppress riots, are to remain quiet and passive. No such 
" meaning was within view of the legislature, nor does the opera- 
" tion of the Act warrant any such effect. The civil magisti'ates 
" are left in possession of those powers which the law had given 
" them before. Tf the mob collectively, or a part of it, or any 
" individual, within or before the expiration of that hour attempts 
" or begins to perpetrate an outrage amounting to felony, to pull 
" down a house, or by any other act to violate the law, it is the duty 
" of all present, of whatever description they may be. to endeavour 
" to stop the mischief and to apprehend the offender " (c). 

24. This passage shows that the Riot Act does not destroy any Further ofc- 
power which lawfully existed bffore its passing for the suppression servat 

of riot ('/). But it also admits the inference that, as a general rule, 
it would be extremely imprudent to use an armed force against a 
mob until the proclamation required by the Act has been made 
and the appointed space of an hour elapsed, except in circumstances 
where either the proclamation cannot be read owing to the violence 
of the mob, or the mob, before the expiration of an hour after it 
has been read, perpetrate or are evidently about to perpetrate some 
outrage amounting to felony. In every such case, when it arises, 
the question has to be decided At what point does the felonious 
purpose become so manifest as to justify action 1 

25. Undoubtedly the question is difficult, but many circumstances Circum- 
susgest themselves, which may serve as a guide to justices and wiricifinaT 
officers called on to act in cases of sudden tumult. The first ques- guide 
tion they will ask themselves is for what purpose has the mob authorities 
come together 1 ? as a knowledge of the purpose of the mob usually '' 
furnishes the most certain clue to a determination of the time and 

mode at and in which forcible interference should take place. For 
example, a mob assembles for the purpose of pulling down an 
obstacle to a footpath, which has been obstructed either illegally or 
with doubtful legality. Their proceedings may be disorderly, but 
their purpose may be legal, and certainly is not felonious. The 
probability is that as soon as they have effected their object they 
will disperse. In such a case, the best course is to use no force, 
but merely to take means to identify some of the parties con- 
cerned, with a view to subsequent proceedings, if necessary. 

(a) As to punishment under the Riot Act, see 7 Will. IV. and 1 Viet. c. 91, s. 1 ; 20 & 
21 Viet., c. 3. s. 2 ; 54 <t- 5ft Viet. c. e>9, s. 1 . 

(b) This expression, though very common, isnot strictly accurate. Not the Act but 
only the proclamation is required to be read or recited. 

(c) 2] Howell's State Trials, 193. 

(d) See Report on Featherst.one Riot (Parl. Pap., 1893-94, C. 7234} p. 10, and 
below, p. 220, Note. See also K.R., para. 955. 



218 



SUMMARY OF LAW OF RIOT, ETC. 



Oh. XIII. 

Further 
illustra- 
tions. 



Further 
illustra- 
tions. 



f n case of 
insurrec- 
tion. 



Summary 
uf law as to 
unlawful 
assemblies, 
riots, and 
insurrec- 
tions. 



Summary 
of law as to 
force to be 
used. 



In case of 

unlawful 

SLS&ernbly. 



26. On the other hand, suppose a mob determined to destroy 
the cotton mill of an obnoxious proprietor They arm themselves 
with weapons to break open the doors, and they show a settled inten- 
tion to carry their object into effect. In such a case their intent 
is felonious, but they should be warned of the danger they will incur 
in attempting such an outrage, and the proclamation in the Hiot 
Act should, if time allow, be read ; and whether it has been read 
or not, and whether the hour after the reading has or has not 
expired, the apprehension of the ringleaders, or any other repres- 
sive measures which may be necessary to prevent the actual com- 
mission of an outrage, should be effected, if possible. Soldiers 
may be summoned in case the civil authority is in danger of being 
overpowered, but they should not be called into action till the 
necessity arises for protecting life and property by military 
force. 

27. Take another instance. A meeting assembles in procession 
with a view to political objects, say the furtherance of Parliamentary 
reform, the abolition of an obnoxious tax, or any other political 
object not involving rebellion against the established authority, or 
a clear intention to enforce by violence the object, though legal, 
which they have in view. It is, of course, quite possible that excite- 
ment may prompt them to outrnge, but such a meeting, so long 
as it commits no act of violence, should be interfered with as little 
as may be, and no exhibition of force should take place till some 
violent crime lias been or is about to be committed. 

28. On the other hand, an assemblage which declares openly 
that, it proposes to attack the con>tituted authorities, and which 
consists wholly or partially of aimed men ; or an attempt like that 
of the Fenians at Chester in 1867 to seixe a cnstle for the purpose 
of obtaining arms cannot be too quickly dealt with, and force 
should be repelled by force, care being taken to avoid any 
unnecessary bloodshed or injury. 

29. The conclusions deducible from the foregoing pages appear 
to be as follows : 

1. Persons attending an un'awful assembly are guilty of a 
misdemeanour, and the magistrates may, and under certain circum- 
stances ought, to disperse an unlawful assembly. 

2. Eioteis, before the proclamation contained in the Eiot Act 
has been read and an hour ha.s expired, are guilty of a grave 
misdemeanour, and may be dispersed by the magistrates. After 
the proclamation has been read and nn hour has expired, all persons 
riotously continuing together, to the number of twelve or more, 
become felons, and the Act contains a clause indemnifying the 
officers and their assistants in case of any of the mob being killed 
or injured in the endeavour of the officers and their assistants to 
seize, apprehend, or di.-pei'se them. 

3. Insurgents, or pel-sons engaged in an insurrection, are guilty 
of treason, the gravest sort of crime, and it is the duty of the 
magistrates to take every lawful means to puf down an insurrection. 

30. The law which commands the suppression of unlawful assem- 
blies, riots, and insurrections necessarily justifies the civil power in 
using the necessary degree of fore-e for their suppression. The 
difficulty is to ascertain what is this necessary degree of force, and 
the danger of making a mistake in the matter is serious, as any 
excess in the useof force constitutes a crime. 

31. Beginning with an unlawful assembly, it would appear that 
the police have power to command those present to go away, 
and to arrest them if they do not go, also to stop others whom 



Observations on Duty of Officers. 219 

they see joining tliem (). If the parties interfered with resist, Ch.^3 
such force may be used as will compel obedience ; but it would 
be extremely inadvisable to use any such force as would maim or 
injure the person resisting, unless lie himself made an attack 
indicting, or at all events calculated to indict, grievous personal 
injury on his captor. 

32. Proceeding to the cas-! of a riot before the proclamation J?^* 86 ol 
required by the Ri'>t Act is read, the same observations apply as 

in the case of an unlawful assembly. After the proclamation 
has been read and an hour has ela -sed, considerable force may, 
if necessary, be used for the purpose of dispersing the mob. If 
the mob are committing, or evidently about to commit, some out- 
rage calculated to endanger life or property, then, even before the 
expiration of the hour after the reading of the proclamation, or 
even without rending the proclamation at all, force may equally be 
used. But even then deadly weapons ought not to be employed 
against the rioters, unless they are aimed, or are in a position to 
indict grievous injury on the persons endeavouring to disperse 
them, or are committing, or on the point of committing, some 
felonious outrage, which can only be stopped by armed force (ft). 

33. The existence of an armed insurrection would justify the use of In case of 
any degree of force necessary effectually to meet and cope with the j^ 1 
insurrection. 

34. Applying the foregoing rules respecting the use of force Application 
to soldiers, the following observations occur (c). Soldiers, when ^j^^ser- 
acting in aid of the civil power, in no respect differ, in the view vations to 
of the law, from armed citizens. Their organisation prevents their troops 
being conveniently employed in using moderate force for the purpose po w e?. u 
of dispersing or apprehending rioters without doing them any 

injury ; and as a general rule any action on their part involves the 
risk of indicting death, or, at all events, grievous bodily harm. 
Soldiers, therefore, should never be required to act except in cases 
where the riot cannot reasonably be expected to be quelled with- 
out resorting to such means of repression. These cases are practi- 
cally confined to riots in whirl) violent crimes, such as murder, 
house-breaking, or arson, are being committed, or are likely to be 
committed, and to insurrections in which an intention is clearly 
shown to attempt by force of arms the overthrow of the govern- 
ment, or the execution of some general political purpose (6). 

35. There remains to be considered the question on whom the Division'of 
responsibility of acting rests in the case of the military being em- [i^? onsi " 
ployed in the suppression of disturbances. The primary duty of between 
preserving public order ivsts with the civil power. An officer, magistrate* 
therefore, in all cases where it is practicable, should place himself tswy Officer, 
under the orders of a magistrate. It will be the duty of the 
magistrate to request tht officer '' to take action " (d). On the 

other hand, an otiicer will not perform his duty who, from fear of 
responsibility, lies by and allows outrages to be committed which 
it is in his power to check, merely on the ground that there 
is no magistrate on the spot to give orders to the military (e). 
If the officer and magistrate are acting together, the obligation lies 
on the magistrate to give orders, and an officer would incur coii- 

(a) Hawkins, Bk. 1, cli. Ixv, sec 11. 

(6) See Report on tiie Featherstone Riot (Parl. Pap., 1893-94, C. 7234, p. 10), 
and helow, p. 220, Note. 

(c) The duties of the military in aid of the civil power are laid down in the King's 
Regulations, | aras. 94-968. 

(rf)K.R., paras. 956, 957. 

(e) K.R., para. 968 ; such cases are, however, very exceptional. 



220 



SUMMARY OF LAW OF 



Oh. XIII. siderable responsibility by firing without his orders, or refusing to 
fire in pursuance of his orders. Still, the law of England is that 
a man obeys an illegal order at his own risk, and circumstances 
might arise which would justify the officer in firing or not firing, 
notwithstanding the magistrate might give orders to the con- 
trary (a). The magistrate, also, if he acts with discretion, will 
necessarily defer in military matters to the opinion of an officer, 
and if he were to give orders to fire upon rioters, although dis- 
suaded by the officer accompanying him he would, as was said in 
the case of R. v. Pinney, have great, difficulty in defending himself 
in the event of death occurring, should he be indicted for man- 
slaughter (/>). 

86. Complaint was made by Sir Charles Napier in his Remark* 
on Military LHW, of the hardship of imposing on an officer the obli- 
gation of deciding whether he is or is not justified in ordering his. 
men to act. He contended that an officer ought not to be liable to 
trial by the ordinary courts of justice for anything he may do in 
executing the duty imposed on him by the civil magistrate, namely, 
to quell the riot (c). 

The answer is, that an officer has no greater responsibility than. 
a civilian. Mr. Justice Littledale, in the case of R. v. Pinney, says : 

" Now a person, whether a magistrate or a peace officer, who has 
" the duty of suppressing a riot, is placed in a very difficult situa- 
" tion, for if by his acts he causes death, he is liable to be indicted 
" for murder or manslaughter ; and if he does not act he is liable 
" to an indictment or an information for neglect ; he is therefore 
" bound to hit the precise line of his duty, and how difficult 
" it is to hit that precise line will be matter for your consideration ;. 
" but that, difficult as it may be, he is bound to do. Whether a 
" man has sought a public situation, as is often the case of mayors 
" and magistrates, or whether as a peace officer he has been com- 
" pelled to take the office that he holds, the same rule applies, and 
" if persons were not compelled to act according to law, there would 
" be an enrl of society." 

At the same time the law has always made liberal allowance for 
the difficulties of persons so circumstanced, and persons whose 
intention is honest and upright, and who act with firmness to the 
best of their judgment, need seldom fear the results of inquiry into 
their conduct. 



NOTE. 
Extract from Report of Commit la- nn feather stone Riot. 

The following summary of tl:e la>v as to the duties of soldiers in case of riot was 
given in their Report, by the Committee who inquired into the facts of the Feather- 
stone Riots in 1893. the Report gains we ; 'iht, from the fact that the Committee 
was presided over by Lord Rowen. It will lit seen that this statement of the law 
is in complete accord with the present chapter, 011 which, indeed, it seems to have 
be> j n founded : 

" By the law of this country every one is hound to aid in the suppression of riotous 
assemblages. Ti;e degree of force, however, which may be used in their suppression. 



(a) K.R., parts. 957, 958 ; and Note to this Chap. 

(b) See R. v. Hnnei/, 5 C. & P. 273. "The next thing imputed against the 
'defendant is that there was a want of energy in his conduct in not ordering the 
' military to lire upon the rioters. Upon this part of the case it appears that he 
4 was intending to do so, but was dissuaded by Colonel Brereton and also by Ma.]or 
'Mackworth, and if the defendant had given .in order to tire upon the rioters, and 
' death had ensued, he would, upon an indictment for murder or manslaughter, have 
'had great difficulty to defend himself, if it had appeared that he had given the 
' order to tire against the advice of two distinguished military officers." As to the 

liability of subordinates, see eh. VIII, para. 98. 

(c) Q'uoted by Clode, Mil. Forces ii, p. 153. 



Observations on Duty of Officers. 221 

depends oti the nature of each riot, for the force used must always l>e moderated Ch. 
and proportioned to the circumstances of the case and to the eiM to be attained. 

"The taking of life can only be .justified by the necessity for protecting persons 
or propeity against various forms of violent crime, or by the necessity of dispersing 
a riotous crowd which is dangerous unless dispersed, or in the case ol persona whose 
conduct lias become felonious through disobedience to the provisions of the Hiot 
Act, ami who resist the attempt to disperse or apprehend them. The riotous crowd 
at the Aekton Hall Colliery was one whose danger consisted in its manifest design 
violently to set tire and do serious damage to the colliery property, and in pursuit 
of tiiat object to assault those upon ihe colliery premises. It was a crowd accord- 
ingly which threatened serious outrage, amounting to felony, to property and 
persons, and it became the duty of all peaceable subjects to assist in preventing 
this. The neeessarv prevention of such outrage on person and | roperty justifies 
the guardians of the peace in the employment against a riotous crowd of even 
deadly weapons. 

" Ulticers and soldiers are under no special privileges and subject to no special 
responsibilities as regards this principle of the law. A soldier for the purpose 
of establishing civil order is only a citizen armed in a particular manner. He 
cannot because he is a soldier excuse himself if without necessity he takes human 
lite. The duty of magistrates and peace otiiceis to summon or to abstain from 
summoning the assistance of tne military depends in like manner on the necessities 
of the case. A sol-iier can only act by using his arms. The weapons he carries 
are deadly. They cannot be employed at all without danger to life and limb, 
and, in these days of improved rifles and perfected ammunition, without some 
risk of injuring distant and possibly innocent bystanders. lo call for assistance 
against rioters irom those who can only interpose under such grave conditions 
ought, of course, to be the last expe lient of the civil authorities. But when 
the call for help is made, and a necessity for assistance Irom the military has arisen, 
to refu e such assistance is in law a misdemeanor. 

" The whole action of the military when once called in ought, from first to last, 
to be I ased on the principle of doing, and doing without fear, tbat which is abso- 
lutely necessary to prevent serious crime, and of exercising all care and skill wi'h 
ragaul to what is done. No set of rules exists which governs every instance or 
dennes beforehand every contingency that may arise. One salutary practice is that 
a magistrate should accompany the troops. The presence of a magistrate on such 
occasions, although n<>t a legal obligation, is a matter of the highest importance. 
Th military come, it may be, from a distance They know nothing, probably, 
of the locality, or of the special circumstances. They lind themselves introduced 
suddenly on a field of action, and they need the counsel of the local justice, who 
is presumably familiar with the details of the case. But, although the magis- 
trate's presence is of the highebt value and moment, his absence does not alter the 
duly of tlie soldier, nor ought it to paraiy.->e his conduct, but only to render him 
doubly careful as to the proper steps to be taken. No officer is justified by English 
law in ntandmg by and allowing felonious outrage to be committed merely because 
of a rnvgist rates absence. 

" The question whether, on any occasion, the moment has come for firing upon 
a mob of rioters depends, as we have said, on tiie necessities of tlie case. Such firing, 
to be lawful, must, in the case of a riot like the present, be necessary to stop or 
prevent such serious nd violent crime as we have alluded to; and it must be con- 
ducted without recklessness or negligence. When the need is clear, the soldier's 
duty is to lire with all reasonab e caution, so as to produ e no further injury than 
what is absolutely wanted for the purpose of protecting person and property. An 
order from the magistrate who is present is required by military reg dations, and 
wisdom and discretion are ntirelv in fax our of the observance of such a practice. 
But the order of tne magistrate has at law no legal effect. Its presence does not 
justify the tiring if the magistrate is wrong. Its absence does not excuse the 
officer for declining to tire when the necessity exists. 

'' With tlie above doctrines of English law the Riot Act does not interfere. 
Its effect is only to make the failure of a crowd to disperse for a whole hour after 
the proclamation has been read a felony ; and on this ground to afford a statutory 
justification for dispersing a felonious assemblage, even at the risk of taking life. 
In the case of the Ackt n Hall Colliery, an hour had not elapsed after what is 
(popularly called the reading of the Riot Act, before ihe military tired. No ju-tifi- 
cation tor their tiring can therefore be resteU on the provisions of the Riot Act itself, 
<the further consideration ot which may indeed be here dismissed from the case. 
But tlie fact that an hour had not expired since its reading did not incapacitate 
the troops from acting when outrage bad to be prevented. All their common law 
duty as citizens and soldiers remained in full force. The justification of Captain 
Barker and his men must stand or fall entirely by the common law. Was what 
fehey did necessary, and no more tnau was necessary, to put a stop to or prevent 
felonious crime? In doing it did they exercise all ordinary skill and caution, so 
as to do ti" more harm than could be reasonably avoided ? 

" If these two conditions are made out, the fact that innocent people have suffered 
does not involve the troops in legal lesponsibility. A guilty ringleader who 
under such conditions is shot dead, dies by justifiable homicide. An innocent 
[person killed under such conditions, w. ere no negligence has occurred, dies by an 
.accidental death. The legd reason is nut that, the iiinoce .t person ha* tn thank 
himself for what has happened, for it is couceivabl (though not often likely) that 
he may have been unconscious of any danger and innocent of all imprudence. 
The reason is that the soldier who tired has done nothing except what was his strict 
legal duty." Parl. Pap. ls93-94, C. 7234, 



CHAPTER XIV. 



THE LAWS AND CUSTOMS OF WAR ON LAND. 



NOTE. 

What formerly appeared as Chapter XIV of this work is now 
out of date, and owing to important questions of international law 
being at the present time under consideiation at the Hague 
Conference, it has been thought desirable to defer the rewriting of 
the chapter till the results uf the Conference are available. 



THE GENEVA CONVENTION, 1864. 223 

Ch. XIV. 
I. 

THE GENEVA CONVENTION, 1864. 

For the Amelioration of the Condition of the Wounded in 
Armies in the Field, August 22, 1864. 



Article I. 

Les ambulances et les hopitaux militaires seront recomms neutre.*, 
et, comnie tels, proteges et respecter par les belligerants aussi long- 
teui[>s qu'ii s'y trouvera des m. Jades ou des blesses. 

La ueutralite cesserait i ces ambulances on ces L6pitaux 6taient 
gardes par uue force militaire. 

Article II. 

Le personnel des hdpitaux et des ambulances, comprenant 
I'inteudance, les services de saute, d'administration, de transport 
des blesses, aiusi que les aumoiiiers, }iarticipeia au benetice de la 
neutrality lorsqu'il fonctiounera, et tant qu'il restera des blesses 
a relever ou a secourir. 

Article lit. 



Les persnnnes desurnees dans 1'Article pr6ce"dent pourront, 
apres I'occupation par 1'euuemi, continuer a remplir leurs fonctions 
dans I'hopital on 1'ainbulance qu'elles desservent, ou se retirer pour 
rejoiudre le corps auquel elles appartienneiit. 

Dans ces circoustances, lorsquc ces peisonnes cfsseront leurs- 
fonctions, elles seront remises aux avaut-postes enuemis, par les 
soins de I'arnice occupant. 

Article IV. 

Le materiel des hopitaux militaires demeurant soumis aux lois- 
de la guerre, les personnes actachet-s a ces hopitaux ne pourront, 
en se reciraut, em]>orter que les objets qui sout leur propriete 
parti culiere. 

Dans les niemes cireonstances, au contraire, 1'ambulance con* 
servera son materiel. 

Article V. 

Les habitants du pays qui porteront secours aux blesses seront 
rfspectes, et deuieurerunt libieo. Ls Generaux des Puissances. 
belliyeraiitt-s auront pour mission de pievenir les habitants de 
1'appel fait a leur humanite, et de la neutrality qui en sera la 
consequence. 

Tout blesse recueilli et soigne dans une maison y servira de 
sauvegarde. L'habitant qui aura reoueilli ehfz lui des blesses sera 
dispense du logi-meut des troupes, ainsi que d : uue partie des con- 
tributions de guerre qui seraieiit iuiposees. 

Article VI. 

Les milHaires lilesses ou malades seront recueillis et 
quelqne nation qu'ils appartieiidiont. 

LfS Commandants-en-chef auront la facnlt6 de remettre imme- 
diatmient, aux avani-postt-s ennemis, les militaires blesses pendant 
le combat, loisque les cii Constances le peimettront, et du consente- 
nient des deux partis. 



224 THE LAWS AND CUSTOMS OF WAR. 

Ch. XIV. Seront renvoyes dans leurs pays ceux qui, apres gucrison, seroni 
reconuus incapables de seivir. 

Les antics pourront etre egalement renvoyes, a la condition de 
ne pas repremlre les armes pendant la duree de la guerre. 

Les evacuations, avee le personnel qui les dirige, serout converter 
par une neutralite abaolue. 

Article VII. 

Un drapeau distinctif et uniforme sera adopt6 pour les hopitaux 
les ambulance-^, et les evacuations. 11 devra etre, en toute ciroon- 
stance, aocnmpagne <lu drapeau national. 

Un brassard sera egnlement ad in is pour le personnel neutralise, 
mais la delivrance en sera laisseV a 1'autonte militaire. 

Le drapeau et le brass.trd purteront croix rouge sur fond blanc. 

Article VIII. 

Les details d'execution de la presente Convention seront regies 
par les Uommaiidauts-en-chef des aruieea b^lliijei'antes, d'api-e.s les 
iiisiriictions de leurs Gouveruemeuta respect i*'s. et conformement 
aux principes gciieraux enonces dans cette Convention. 

Article IX. 

Les Hantes Puissances Contracrautes sont convenues de com- 
muiiiquer la presente Convention aux Gouvernements qui n'ont pu 
envoyer des Pieuipi.tentiaires a la Conference Internationale de 
Geneve, en les invitant a y acceder ; le Protucole est a cet effet 
Jaisse ouveit. 

Article X. 

La prtisente Convention sera ratifiee, et les ratifications en seront 
echangees a Berne, dans 1'espace de qu ttre mois, ou plus tot &i faire 
se. pent. 

En foi de quoi les Plenipotentiaires respectifs 1'ont signee, et y 
ont appose 1 j cachet, de leurs arnies. 

Fait a Geneve, le vingt-deuxieuie jour du mois d'aoflt, de 1'an mil 
huit cent fcoixaute-quatre. 



(TRANSLATION.) 

( 



Article I. 

Ambulances and mil i tar y h os [ litals shall be acknowledged to 
be neutral, and, as such *hall be protected and respected by 
belligerents so long as any sick or wounded may be therein. 

Such neutrality shall cease if the ambulances or hospitals should 
be held by a military force. 

Article IT. 

Persons employed in hospitals and ambulances, comprising the 
staff for snpeiiiitemlem-e, medical service, administration, trans- 
port of w(Ui<led, as well a~> chaplains, shall participate in the 
bent-tit of neutrality whilst s> employed, and so long as there 
remain any wounded to bnng in or to succour. 



THE GENEVA CONVENTION, 1864. 



225 



Article III. 

The persons designated in the preceding Article may, even after 
occupation by the enemy, continue to fulfil their duties in the 
hospital or ambulance which they serve, or may withdraw in order 
to rejoin the corps to which they belong. 

Under such circumstances, when those persons shall cease from 
their functions, they shall be delivered by the occupying army to 
the outposts of the enemy. 

Article IV. 

As the equipment of military hospitals remains subject to the 
laws of war, persons attacftOT to such hospitals cannot, in with- 
drawing, carry away ,any articles but such as are their private 
property. 

Under the same circumstances an ambulance shall, on the con- 
trary, retain its equipment. 

Article V. 

Inhabitants of the country who may bring help to the wounded 
shall be respected, and shall remain free. The Generals of the 
belligerent Powers shall make it their care to inform the inhabitants 
of the appeal addressed to their humanity, and of the neutrality 
which will be the consequence of it. 

Anv wounded man entertained and taken care of in a house 
shall be considered as a protection thereto. Any inhabitant who 
shall have entertained wounded men in his house shall be exempted 
from the quartering, of troops as well as from a part of the con- 
tributions of "war which may be imposed. 

Article VI. 

Wounded or sick soldiers shall be entertained and taken care of, 
to whatever nation they may belong. 

Commanders-in-chief shall have the power to deliver immediately 
to the outposts of the enemy soldiers who have been wounded in 
an engagement when circumstances permit this to be done, and with 
the consent of both parties. 

Those who are recognised, after their wounds are hea'ied, as 
incapable of serving, shall be sent back to their country. 

The others may also be sent back, on condition of not again 
beaiing arms during the continuance of the war. 

Evacuations, together with the persons under whose directions 
they took pla<:e, shall be protected by an absolute neutrality. 

Article VII. 

A distinctive and uniform flag shall be adopted for hospitals, 
ambulances, and evacuations. It must, on every occasion, be 
accompanied by the national flag. An arm -badge (brassard) shall 
also be allowed for individuals neutralised, but the delivery thereof 
shall be left to military authority. 

The flag and the arm-badge shall bear a red cross on a white 



Oh. XIV. 



ground. 



Article V1I1. 



The details of execution of the present Convention shall be 
regulated by the Commanders-in-chief of belligerent armies, 
according to the instructions of their respective Governments, and 
in conformity with the general principles laid down in this 
Convention. 



226 THE LAWS AND CUSTOMS OF WAR. 

Ch. XIV. Article IX. 

The High Contracting Powers have agreed to communicate the 
present Convention to those Governments which have not found it 
convenient to send Plenipotentiaries to the International Conference 
at Geneva, with an invitation to accede thereto ; the Protocol is 
for that purpose left open. 

Article X. 

The present Convention shall be ratified, and the ratifications 
shall be exchanged at Berne in four months, or sooner if possible. 

In witness whereof the respective Plenipotentiaries have signed 
the same, and have affixed thereto the seal of their arms. 

Done at Geneva, the twenty-second day of August, one thousand 
eight hundred and sixty-four. 



II. 

THE DECLARATION OF ST. PETERSBURG, 1868. 



Renouncing the use, in time of War, of Explosive Projectiles under 

400 Grammes Weight. 



DECLARATION. 

Sur la proposition du Cabinet Imperial de Russie, une Commission 
Militaire Internationale ayant ete reunie a St. Petersbourg, afin 
d'examiner la convenance d'interdire 1'usage de certains projectiles 
en temps de guerre entre les nations civilisees, et cette Commission 
ayant fixe d'un commun accord les limites techniques ou les 
necessites de la guerre doivent s'arreter devant les exigences de 
1'humanite, les Soussignes sont autorises par les ordres de leurs 
Gouvernements a declarer ce qui suit : 

Considerant que les progres de la civilization doivent avoir pour 
effet d'attenuer autant que possible^es calamites de la guerre ; 

Que le seul but legitime que les Etats doivent se proposer durant 
la guerre est I'affaiblissernent des forces militaires de 1'ennemi ; 

Qu'a cet effet, il suffit de mettre hors de combat le plus grand 
nombre d'hommes possible ; 

Que ce but serait depasse par 1'emploi d'arines qui aggraveraient 
inutilement les souffrarices des homines mis hors de combat, ou 
rendraient leur mort inevitable ; 

Que 1'emploi de pareilles armes serait des lors contraire aux lois 
de 1'humanite ; 

Les Parties Contractantes s'engagent a renoncer mutuellement, 
en cas de guerre entre elles, a 1'emploi par leurs troupes de terre ou 
de mer, de tout projectile d'un poids inferieur a 400 grammes 
qui serait ou explosible ou charge de matieres fulminantes ou 
inflammables. 

Elles inviteront tous les Etats qui n'ont pas participe par 1'envoi 
de Delegues aux deliberations de la Commission Militaire Inter- 
nationale r6unie a St. Petersbourg a acceder au present engagement. 

Cet engagement n'est obligatoire que pour les Parties Contractantee 
ou Accedantes en cas de guerre entre deux ou plusieurs d'entre 
elles : il n'est pas applicable vis-a-vis de Parties non-Contractantss 
ou qui n'auraient pas acced. 



THE DECLARATION OF ST. PETERSBURG, 1868. 227 

II cesserait 6galement d'etre obligatoire du moment ou, dans une Ch. XIV. 
guerre entre Parties Contractautes ou Acc6dautes, une partie non- 
Contractante ou qui n'aurait pas accede se joindrait a 1'un des 
belligerants. 

Les Parties Contractantes ou Accedantes se reservent de s'entendre 
ulterieurement toutes les fois qu'une proposition precise serait 
formulae en vue des perfectionnements a venir que la science 
pourrait apporter dans rarmement des troupes, afin de mamtenir 
les principes qu'elles ont poses et de concilier les necesssites de la 
guerre avec les lois de 1'humanite. 

Fait a St. Petersbourg, le ou^f t D6cem 1 brr mbre > mil liuit cent 
soixante-huit. 



(TRANSLATION.) 

DECLARATION. 

On the proposition of the Imperial Cabinet of Russia, an Inter- 
national Military Commission having assembled at St. Petersburg!! 
in order to examine into the expediency of forbidding the use of 
certain projectiles in times of war between civilized nations, and 
that Commission, having by common agreement fixed the technical 
limits at which the necessities of war ought to yield to the require- 
ments of humanity, the Undersigned are authorized by the orders- 
of their Governments to declare as follows : 

Considering that the progress of civilization should have the 
effect of alleviating as much as possible the calamities of war ; 

That the only legitimate object which States should endeavour 
to accomplish during war is to weaken the military forces of the 
enemy ; 

That for this purpose it is sufficient to disable the greatest 
possible number of men ; 

That this object would be exceeded by the employment of arms 
which uselessly aggravate the sufferings of disabled men, or render 
their death inevitable ; 

That the employment of such arms would, therefore, be contrary 
to the laws of humanity ; 

The Contracting Parties engage mutually to renounce, in case of 
war among themselves, the employment by their military or naval 
troops of any projectile of a weight below 400 grammes, which is 
either explosive or charged with fulminating or inflammable 
substances. 

They will invite all the States which have not taken part in the 
deliberations of the International Military Commission assembled 
at St. Petersburg!!, by sending Delegates thereto, to accede to the 
present engagement. 

This engagement is obligatory only upon the Contracting or 
Acceding Parties thereto, in case of war between two or more of 
themselves : it is not applicable with regard to non-Contracting 
Parties, or Parties who shall not have acceded to it. 

It will also cease to be obligatory from the moment when, in a 
war between Contracting or Acceding Parties, a non-Contracting 
Party or a non-Acceding Party shall join one of the belligerents. 

The Gmtracting or Acceding Parties reserve to themselves to 

come hereafter to an understanding wnenever a precise proposition 

shall be drawn up in view of future improvements which science 

may effect in the armament of troops, in order to maintain the 

(M.L.) p 2 



228 THE LAWS AND CUSTOMS OF WAR. 

Ch. XIV. principles which they have established, and to conciliate the 
necessities of war with the laws of humanity. 

Done at St. Petersburgh, the %%%*?*"> one thousand 
eight hundred and sixty-eight. 



III. 

KEGULATIONS ANNEXED TO THE HAGUE CONVEN- 
TION, 1899, RESPECTING THE LAWS AND CUSTOMS 
OF WAR ON LAND. 



ANNEXE A LA CONVENTION. 



Reglcmeni concernant les Lois et Coutumes de la Guerre sur Terre. 
SECTION I. DES BELLIGERANTS. 



Chapitre I. DE LA QUALIT DE BELLIGERANT. 

Article I. 

LES lois, les droits, et les devoirs de la guerre ne s'appliquent pas 
seulenieiit a 1'armee, mais encore aux milices et aux corps de 
volontaires reunissant les conditions suivantes : 

1. D'avoir a leur t8te vine personne responsable pour ses sub- 
ordonnes ; 

2. D'avoir un signe distinctif fixe et recoimaissable a distance ; 

3. De porter les armes ouvertement ; et 

4. De se conformer dans leurs operations aux lois et coutumes de 
la guerre. 

Dans les pays ou les milices ou des corps de volontaires constituent 
1'arruee ou en font partie, ils sont compris sous la denomination 
" d'arniee." 

Article IL 

La population d'un territoire non occupe qui, a 1'approche de 
1'ennemi, prend spontanement les armes pour combattre les troupes 
d'iuvasion sans avoir eu le temps de s'organiser conformement a 
1" Article I er , sera consideree comme belligerante si elle respecte les 
lois et coutumes de la guerre. 

Article III. 

Les forces arniees des parties belligerantes peuvent se composer 
de combattants et de non-combattants. En cas de capture par 
1'ennemi, les uns et les autres out droit au traitement des prison- 
niers de guerre. 

Chapitre II. DES PRISONNIERS DE GUERRE. 

Article IV. 

Les prisonniers de guerre sont au pouvoir du Gouvernement 
eunemi, mais non des individus ou des corps qui les ont captures. 

lis doivent etre traites avec hurnanite. 

Tout ce qui leur appartient personellement, excepte" les armes, 
les chevaux, et les papiers militaires, reste leur propriete. 



TIIE HAGUE CONVENTION, 1899 ANNEX. 229 

Article V. Ch.JCIV. 

Les prisonniers de guerre peuvent etre assujettis a 1'internement 
dans une ville, forteresse, camp, ou localite quelconque, avec 
obligation de ne pas s'en eloigner au dela de certaines limites 
determinees ; rnais ils ne peuvent etre enfermes que par mesure de 
surete indispensable. 

Article VI. 

L'Etat peut employer, comme travailleurs, les prisonniers de 
guerre, selon leur grade et leurs aptitudes. C'es travaux ne seront 
pas excessifs et n'auront aucun rapport avec les operations de la 
guerre. 

Les prisonniers peuvent etre autorises a travailler pour le 
compte d'Administrations Publiques ou de particuliers, ou pour 
leur proper compte. 

Les travaux fait pour 1'Etat sont payes d'apres les tarifs en 

ueur pour les militaires de 1'armee nationale executant les 
rnernes travaux. 

Lorsque les travaux ont lieu pour le compte d'autres Administra- 
tions Publiques ou pour des particuliers, les conditions en sont 
reglees d'accord avec 1'autorite militaire. 

Le salaire des prisonniers contribuera a adoucir leur position, et 
le surplus leur sera compte an moment de leur liberation, sauf 
defalcation des frais d'entretien. 

Article VII. 

Le Gouvernement au pouvoir duquel se trouvent les prisonniers 
cle guerre est charge de leur entretien. 

A defaut d'une entente speciale entre les belligerants, les prison- 
niers de guerre seront traites, pour la nourriture, le couchage, et 
riiabillement, sur le meme pied que les troupes du Gouvernement 
qui les aura captures. 

Article VIII. 

Les prisonniers de guerre seront spumis aux lois, reglements, et 
ordres en vigueur dans 1'armee de 1'Etat au pouvoir duquel ils se 
trouvent. 

Tout acte d'insubordination autorise, a leur egard, les mesures de 
rigueur necessaires. 

Les prisonniers evades, qui seraient repris avant d'avoir pu 
rejoiudre leur armee ou avant de quitter le territoire occnpe par 
1'armee qui les aura captures, sont passibles de peines disciplinaires. 

Les prisonniers qui, apres avoir reussi a s'evader, sont de nouveau 
faits prisonniers, ne sont passibles d'aucune peine pour la fuite- 
anterieure. 

Article IX. 

Chaque prisonnier de guerre est tenu de declarer, s'il est interrog6 
a ce sujet, ses veritables noms et grade et, dans le cas ou il enfrein- 
drait cette regie, il s'exposerait a une restriction des avantages 
accordes aux prisonniers de guerre de sa categoric. 

Article X. 

Les prisonniers de guerre peuvent etre mis en liberte sur parole, 
si les lois de leur pays les y autorisent, et, en pareil cas, ils sont 
obliges, sous la garantie de leur honneur personnel, de remplir 
scrupuleusement, tant vis-a-vis de leur propre Gouvernement que 
vis-a-vis de celui qui les a faits prisonniers, les engagements qu'ils 
auraient contractes. 



230 THE LAWS AND CUSTOMS OF WAR. 

Ch. XIV. Dans le meme cas, leur propre Gouvernement est term de n'exiger 
ni accepter d'eux aucun service coutraire a la parole donnee. 

Article XL 

Un^ prisonnier de guerre ne peut e~tre contraint d'accepter sa 
liberte sur parole ; de meme le Gouvernement ennemi n'est pas 
oblige d'acceder a la demande du prisonnier reclamant sa mise en 
liberte sur parole. 

Article XII. 

Tout prisonnier de guerre, libere sur parole et repris portant les 
armes centre le Gouvernement envers lequel il s'etait engage 
d'honneur, ou contre les allies de celui-ci, perd le droit au traite- 
nient des prisonniers de guerre et peut etre traduit devant les 
Tribunaux. 

Article XIII. 

Les individus qui suivent uue armee sans en faire directement 
partie, tels que les correspondants et les reporters de journaux, les 
vivancliers, les fournisseurs, qui tombent au pouvoir de Penneroi et 
que celui-ci juge utile de detenir, ont droit au traitement des 
prisonniers de guerre, a condition qu'ils soient munis d'une legitima- 
tion de 1'autorite militaire de Parrnee qu'ils accompagnaient. 

Article XIV. 

II est constitue, ds le debut des hostilites, dans chacun des Etats 
oelligerants et, le cas echeant, dans les pays neutres qui auront 
recueilli des belligerants sur leur territoire, un bureau de ren- 
seignements sur les prisonniers de guerre. Ce bureau, charge de 
repondre a toutes les demandes qui les concernent, regoit des divers 
services corupetents toutes les indications necessaires pour lui 
permettre d'etablir une fiche individuelle pour chaque prisonnier 
de guerre. II est tenu au courant des internements et des 
mutations, aiusi que des entrees dans les hopitaux et des deces. 

Le Bureau de Eenseignements est egalement charge de recueillir 
et de centraliser tons les objets d'un usage personnel, valeurs, 
lettres, &c., qui seront trouves sur les champs de bataille ou 
delaisses par des prisonniers d^cedes dans les hopitaux et ambu- 
lances, et de les transmettre aux iuteresses. 

Article XV. 

Les Societes de Secours pour les prisonniers de guerre, reguliere- 
ment constituees selon la loi de leur pays et ayant pour objet d'etre 
les intermediaires de 1'action charitable, recevront, de la part des 
bellio-erants, pour elles et pour leurs agents dument accredites, 
toute facilite, dans les limites tracees par les necessites militaires et 
les regies administratives, pour accomplir efficacement leur tache 
d humanite. Les Delegues de ces Societes pourront etre admis a 
distribuer des secours dans les depots d'interuement, ainsi qu'aux 
lieux d'etape des prisonniers rapatries, moyennant une permission 
personnelle delivree par 1'autorite militaire, et en prenant 1'engage- 
ruent par ecrit de se soumettre a toutes les mesures d'ordre et de 
police que celle-ci prescrirait. 

Article XV I. 

Les Bureaux de Eenseignements jouissent de la franchise de 
port. Les lettres, mandats, et articles d'argent, ainsi que les colis 
postaux destines aux prisonniers de guerre ou expedies par eux, 



THE HAGUE CONVENTION, 1899 ANNEX. 231 

seront affranchis de toutes taxes postales, aussi bien dans les Oh. XIV. 
pays d'origine et de destiuation que dans les pays intermediaires. 

Les dons et secours en nature destines aux prisonniers de guerre 
seront admis en franchise de tous droits d'entree et autres, aiiisi 
que des taxes de transport sur les chemins de fer exploites par 
1'Efcat. 

Article XVII. 

Les officiers prisonniers pourront recevoir le complement, s'il y a 
lieu, de la solde qui leur est attribute dans cette situation par les 
Reglements de leur pays, a charge de remboursemeiit par leur 
Gouvernement. 

Article XVIII. 

Toute latitude est laissee aux prisonniers de guerre pour 1'exercice 
de leur religion, y compris 1'assistance aux offices de leur culte, a la 
seule condition de se conformer aux mesures d'ordre et de police 
prescrites par I'autorit6 militaire. 

Article XIX. 

Les testaments des prisonniers de guerre sont re^us ou dresses 
dans les memes conditions que pour les militaires de I'arm4e 
nationale. 

On suivra egalement les rnemes regies en ce qui concerne les 
pieces relatives a la constatation des deces, aiusi que pour 
I'inhimiation des prisonniers de guerre, en tenant compte de leur 
grade et de leur rang. 

Article XX. 

Apreis la conclusion de la paix, le rapatriement des prisonniers de 
guerre s'effectuera dans le plus bref delai possible. 

Chapitre III. DES MA LADES ET DES BLESSES. 

Article XXI. 

Les obligations des belligerants concernaut le service des malades 
et des blesses sont regies par la Convention de Geneve du 22 Aout, 
1864, sauf les modifications dont celle-ci pourra etre 1'objet. 



SECTION II. DES HOSTILITES. 

Chapitre I. DES MOTENS DE NUIRE 1 L'ENNEMI, DES SIEGES 

ET DES BOMBARDEMENTS. 

Article XXII. 

Les belligerants n'ont pas un droit illimite quant au choix des 
moyens de nuire a 1'ennemi. 

Article XXIII. 

Outre les prohibitions etablies par des Conventions speciales, il 
est notamment interdit : 

(a) D'employer du poison ou des armes empoisonnees ; 
(6) De tuer ou de blesser par trahison des individus appartenant 
a la nation ou d 1'armee ennemie ; 

(c) De tuer ou de blesser un ennemi qui, ayant mis bas les armes 
ou n 'ayant plus les moyens de se defendre, s'est rendu a discretion ; 

(d) De declarer qu'il ne sera pas fait de quartier ; 



THE LAWS AND CUSTOMS OF WAR. 

^'^ 1V> v ( e ) D'employer des armes, des projectiles, ou des rnatieres propres 
causer des maux superflus ; 

(/) D'user indurnent du pavilion parlementaire, du pavilion 
national, ou des insignes militaires et de 1'uniforme de 1'ennemi, 
ainsi que des signes distinctifs de la Convention de Geneve ; 

(g) De detruire ou de saisir des proprietes ennemies, sauf les cas 
oh ces destructions ou ces saisies seraient imperieusement com- 
mandees par les necessites de la guerre. 

Article XXIV. 

Les ruses de guerre et 1'emploi des moyens necessaires pour se 
procurer des renseignements sur 1'ennemi et sur le terrain sont 
considered com me licites. 

Article XX V. 

II est interdit d'attaquer ou de bombarder des villes, villages, 
habitations, ou bailments qui ne sont pas defendus. 

Article XXVI. 

Le Commandant des troupes assaillantes, avant d'entreprendre 
le bombardement, et sauf le cas d'attaqne de vive force, devra faire 
tout ce qui depend de lui pour en avertir les autorites. 

Article XXVII. 

Dans les sieges et bombardements, toutes les mesures necessaires 
doivent e"tre prises pour epargner, autant que possible, les Edifices 
consacres aux cultes, aux arts, aux sciences, et a la bienfaisance, les 
hopitaux et les lieux de rassemblement de malades et de blesses, a 
condition qui'ls ne soient pas employes en merne temps a un but 
militaire. 

Le devoir des assieges est de designer ces edifices ou lieux de 
rassemblement par des signes visibles speciaux qui seront notifies 
d'avauce a 1'assiegeant. 

Article XX VIII. 

II est interdit de livrer au pillage meme une ville ou localite 
prise d'assaut. 

Chapitre II. DES ESPIONS. 

Article XXIX. 

Ne peut ecre considere comme espion que 1'individu qui, agissant 
clandestinement ou sous de faux pretextes, recueille ou cherche a 
recueillir des informations dans la zone d'operations d'un belligerant, 
avec 1'intention de les communiquer a la partie adverse. 

Ainsi les militaires non deguises qui ont p6netre dans la zone 
d'operations de 1'armee ennemie, a 1'effet de recueillir des informa- 
tions, ne sont pas consideres comme espions : les militaires et les 
non-militaires, accomplissaut ouvertement leur mission, charges de 
transmettre des depeches destinees soit a leur propre arinee, soit a 
1'armee ennemie. A cette categoric appartiennent egalement les 
mdividus envoyes en ballon pour transmettre les depeches, et en 
general, pour entretenir les communications entre les diverses 
parties d'une armee ou d'un territoire. 

Article XXX. 

L'espion pris sur le fait ne pourra etre puni sans jugement 
prealable. 



THE HAGUE CONVENTION, 1899 ANNEX. 233 

Article XX XL Ch. XIV. 

L'espion qui, ayanl rejoint 1'armee a laquelle il appartient, est 
capture plus tard par 1'ennemi, est traite comme prison nier de 
guerre et n'encourt aucune responsabilite pour ses actes d'espion- 
nage anterieurs. 

Chapitre III. DES PARLEMENTAIRES. 

Article XXXII 

Est considere comme parlementaire 1'individu autorise par 1'un 
des belligerants a entrer en pourparlers avec 1'autre et se pre- 
sentant aveo le drapeau blanc. II a droit a 1'inviolabilite ainsi que 
le trompette, clairon, ou tambour, le porte-drapeau et 1'interprete 
qui 1'accompagneraient. 

Article XXXIII. 

Le Chef auquel un parlementaire est expedie n'est pas oblige de 
le recevoir en toutes circonstances. 

II peut prendre toutes les mesures necessaires afin d'empecher le 
parlementaire de pron'ter de sa mission pour se renseigner. 

II a le droit, en cas d'abus, de retenir temporairement le parle- 
mentaire. 

Article XXXIV. 

Le parlementaire perd ses droits d'inviolabilite, s'il est prouve, 
d'une maniere positive et irrecusable, qu'il a profit e de pa position 
privilegiee pour provoquer ou commettre un acte de trahison. 

Chapitre IV. DES CAPITULATIONS. 

Article XXXV. 

Les Capitulations arretees entre les Parties Contractantes doivent 
tenir compte des regies de Fhonneur militaire. 

Une fois fixees, elles doivent etre scrupuleusement observees par 
les deux parties. 

Chapitre V. DE L'ARMISTICE. 

Article XXXVI. 

L'armistice suspend les operations de guerre par un accord 
mutuel des parties belligerantes. Si la duree n'en est pas deter- 
minee, Jes parties belligerantes peuvent reprendre en tout temps 
les operations, pourvu toutefois que 1'ennemi soit averti en temps 
conveun, conformement aux conditions de 1'armistice. 

Article XX XVII. 

L'armi.-tice peut Stre general ou local. Le premier suspend 
partout les operations de guerre des Etats belligerants ; le second, 
settlement entre certaines fractions des ai-mees belligerantes et dans 
un rayon determine. 

Article XXXVIII. 

L'armistice doit etre notifie officiellement et en temps utile aux 
autorites competentes et aux troupes. Les hostilites sont suspen- 
dues immediatement apres la notih'cation on au terme fixe. 

Article XXXIX. 

II depend des Parties Contractantes de fixer, dans les clauses de 
1'armistice, les rapports qui pourraient avoir lieu, sur le theatre de 
la guerre, avec les populations et entre elles. 



234 THE LAWS AND CUSTOMS OF WAR. 

Ch JCIV. Article XL. 

Toute violation grave de I'armistice, par Tune dee parties, donne 
a 1'autre le droit de le denoncer et meme, en cas d'urgence, de 
reprendre inimediatement les hostilites. 

Article XL I. 

La violation des clauses de 1'armistice par des particuliers 
agissant de leur propre initiative, donne droit settlement a reclamer 
la punition des coupables et, s'il y a lieu, une indemnite pour les 
pertes eprouv6es. 

SECTION III. DE L'AUTOBITE MILITAIRE SUE, LE 
TEERITOIEE LE L'ETAT ENNEMI. 



Article XL II. 

Un territoire est considere comme occupe lorsqu'il se trouve 
place de fait sous 1'autorite de 1'armee ennemie. 

L'occupation ne s'etend qu'aux territoires ou cette autorite est 
etablie et en mesure de s'exercer. 

Article XLIII. 

L'autorite du pouvoir legal ayant passe de fait entre les mains 
de 1'occupant, celui-ci prendra toutes les mesures qui dependent de 
lui en vue de retablir et d'assurer, autant qu'il est possible, 1'ordre 
et la vie publics en respectant, sauf empchement absolu, les lois 
en vigueur dans le pays. 

Article XLIV. 

II est interdit de forcer la population d'un territoire occupe a 
prendre part aux operations militaires contre son propre pays. 

Article XLV. 

II est interdit de contraindre la population d'un territoire occupe 
a preter serment a la Puissance ennemie. 

Article XLVI. 

L'honneur et les droits de la famille, la vie des individus et la 
propriete privee, ainsi que les convictions religieuses et 1'exercice 
des cultes, doivent tre respected. 

La propriete privee ne peut pas etre confisquee. 

Article XLV II. 
Le pillage est formellement interdit. 

Article XLV III. 
Si 1'occupant preleve, dans le territoire occupe, les imp&ts, droits 
et peages etablis au profit de 1'Etat, il le fera, autant que possible, 
d'apres les regies de 1'assiette et de la repartition en vigueur, et il 
en resultera pour lui Tobligation de pourvoir aux frais de 1'adminis- 
tration du territoire occupe dans la mesure ou le Gouvernement 
legal y etait tenu. 

Article XLIX. 




prel 

ce ne pourra etre que pour 

tration de ce territoire. 



THE HAGUE CONVENTION, 1899 ANNEX. 235 

Article L. Oh. XIV. 

Aucune peine collective, pecuniaire ou autre, ne pourra etre 
edictee oontre les populations a raison de faits individuels dont elles 
ne pourraient 6"tre considerees comnie solidairement responsables. 

Article LI. 

Aucune contribution ne sera pei^ue qu'en vertu d'un ordre ecrit 
et sous la responsabilite d'un General-en-chef. 

II ne sera precede, autant que possible, a cette perception que 
d'apres les regies de 1'assiette et de la repartition des impots en 
vigneur. 

Pour toute contribution un re9u sera delivre aux contribuables. 

Article LII. 

Des requisitions en nature et des services ne pourront etre 
reclames des communes ou des habitants, que pour les besoins de 
1'armee d'occupation. Us seront en rapport avec les ressources du 
pays et de telle nature qu'ils n'impliquent pas pour les populations 
1'obligation de prendre part aux operations de la guerre centre leur 
patrie. 

Ces requisitions et ces services ne seront reclames qu'avec 
1'autorisation du Commandant dans la localite occupee. 

Les prestations en nature seront, autant que possible, payees au 
comptant ; sinon elles seront constatees par des re9us. 

Article LI 11. 

L'armee qui occupe un territoire ne pourra saisir que le numeraire, 
les fonds et les valeurs exigibles appartenant en propre a 1'Etat, les 
depots d'armes, moyens de transport, magasins et approvisionne- 
ments et, en general, toute propriete mobiliere de 1'Etat de nature 
a servir aux operations de la guerre. 

Le materiel des chemins de fer, les telegraphes de terre, les 
telephones, les bateaux a vapeur et autres navires, en dehors des 
cas regis par la loi maritime, de meme que les depots d'armes et en 
general toute espece de munitions de guerre, meme appartenant a 
des Societes ou a des personnel privees, sont egalement des moyens 
de nature a servir aux operations de la guerre, mais devront etre 
restitues, et les indemnites seront regimes a la paix. 

Article LI V. 

Le materiel des ,chetnins de fer provenant d'Etats neutres, qu'il 
appartieune aces Etats ou a des Societus ou personnes privees, leur 
sera renvoye" aussitot que possible. 

Article L V. 

L'Etat occupant ne se considerera que comme administrateur et 
usufruitier des edifices publics, immeubles, forets et exploitations 
agricoles appartenant a 1'Etat ennemi et se trouvant dans le pays 
occupe. II devra sauvegarder le fonds de ces propriet6s et les 
administrer conformement aux regies de 1'usufruit. 

Article L VI. 

Les biens des communes, ceux des etablissements consacres aux 
cultes, a la charite et a 1'iustruction, aux arts et aux sciences, meme 
appartenant a 1'Etat, seront traites comme la propriete privee. 

Toute saisie, destruction ou degradation intentionnelle de sem- 
blables etablissements, de monuments historiques, d'ceuvres d'art 
et de science, est interdite et doit etre poursuivie. 



236 THE LAWS AND CUSTOMS OF WAR. 



Ch. XIV. SECTION IV. DES BELLTGERANTS INTERNES ET DES 
BLESSES SOIGNES CHEZ LES NEUTRES. 



Article LVIL 

/ 

L'Etat neutre qui reQoit sur son territoire des troupes appartenant 
aux armees belligerantes, les internera, autant que possible, loin du 
theatre de la guerre. 

II pourra les garder dans des camps, et meme les enfermer dans 
des forteresses ou dans des lieux appropries a cet effet. 

II decidera si les officiers peuvent etre laisses libres en prenant 
1'engagement sur parole de ne pas quitter le territoire neutre sans 
autorisation. 

Article LVI1I. 

A defaut de Convention speciale, 1'Etat neutre fournira aux 
internes les vivres, les habillements, et les secours commandes par 
rimmanite. 

Bonification sera faite, a la paix, des frais occasionnes par 
1'internement. 

Article LIX. 

L'Etat neutre pourra autoriser le passage sur son territoire des 
blesses ou malades appartenant aux armees belligerantes, sous la 
reserve que les trains qui les ameneront ne transporteront ni 
personnel ni materiel de guerre. En pareil cas, 1'Etat neutre est 
tenu de prendre les measures de surete et de controle nticessaires a 
cet efFet. 

Les blesses ou malades amenes dans ces conditions sur le territoire 
neutre par un des belligerants, et qui appartiendraient a la parti e 
adverse, devront etre gardes par 1'Etat neutre, de maniere qu'ils ne 
puissent de nouveau prendre part aux operations de la guerre. 
Celui-ci aura les mmes devoirs quant aux blesses ou malades de 
1'autre armee qui lui seraient confies. 

Article LX. 

La Convention de Geneve s'applique aux malades et aux blesses 
internes stir territoire neutre. 






(TRANSLATION.) 
ANXEX TO THE CONVENTION. 



Regulations respecting the Laws and Customs of War on Land. 
SECTION I. ON BELLIGERENTS. 



Chapter I. ON THE QUALIFICATIONS OF BELLIGERENTS. 

Article I. 

THE laws, rights, and duties of war apply not only to armies, 
but also to militia and volunteer corps, fulfilling the following 
conditions : 

1. To be commanded by a person responsible for hh sub- 
ordinates ; 

2. To have a fixed distinctive emblem recognizable at a distance : 



THE HAGUE CONVENTION, 1899 ANNEX. 237 

3. To carry arms openly ; and Ch. XIV. 

4. To conduct their operations in accordance with the laws and 
ustorns of Avar. 

In countries where militia or volunteer corps constitute the 
Army, or form part of it, they are included under the denomina- 
tion '" army," 

Article II. 

The population of a territory which has not been occupied who, 
on the enemy's approach, spontaneously take up arms to resist the 
invading troops without having time to organize themselves in 
accordance with Article I, shall be regarded a belligerent, if they 
respect the laws and customs of war. 

Article III. 

The armed forces of the belligerent parties may consist of com- 
batants and non-combatants. In case of capture by the enemy 
both have a right to be treated as prisoners of war. 

Chapter II. ON PRISONERS OF WAR. 

Article IV. 

Prisoners of war are in the power of the hostile Government, 
but not in that of the individuals or corps who captured them. 
They must be humanely treated. 

All their personal belongings, except arms, horses, and military 
papers, remain their property. 

Article V. 

Prisoners of war may be interned in a town, fortress, camp, or 
any other locality, and bound not to go beyond certain fixed limits ; 
but they can only be confined as an indispensable measure of 
safety. 

Article VI. 

The State may utilize the labour of prisoners of war according 
to their rank and aptitude. Their tasks shall not be excessive, 
and shall have nothing to do with the military operations. 

Prisoners may be authorized to work for the Public Service, for 
private persons, or on their own account. 

Work done for the State shall be paid for according to the tariffs 
in force for soldiers of the national army employed on similar 
tasks. 

When the work is for other branches of the Public Service or 
for private persons, the conditions shall be settled in agreement 
with the military authorities. 

The wages of the prisoners shall go towards improving their 
position, and the balance shall be paid them at the time of their 
release, after deducting the cost of their maintenance. 

Article VII. 

The Government into whose hands prisoners of war have fallen 
is bound to maintain them. 

Failing a special agreement between the belligerents, prisoners 
of war shall be treated as regards food, quarters, and clothing, on 
the same footing as the troops of the Government which has 
captured them. 

Article VIII. 

Prisoners of war shall be subject to the laws, regulations, and 
orders in force in the army of the State into whose hands they 
have fallen. 



238 THE LAWS AND CUSTOMS OF WAR. 

XIV. Any act of insubordination warrants the adoption, as regards 
them, of such measures of severity as may be necessary. 

Escaped prisoners, recaptured before they have succeeded in 
rejoining their army, or before quitting the territory occupied by 
the army that captured them, are liable to disciplinary punish- 
ment. 

Prisoners who, after succeeding in escaping, are again taken 
prisoners, are not liable to any punishment for the previous flight. 

Article IX. 

Every prisoner of war, if questioned, is bound to declare his 
true name and rank, and if. he disregards this rule, he is liable to a 
curtailment of the advantages accorded to the prisoners of war of 
his class. 

Article X. 

Prisoners of war may be set at liberty on parole if the laws of 
their country authorize it, and, in such a case, they are bound, on 
their personal honour, scrupulously to fulfil, both as regards their 
own Government and the Government by whom they were made 
prisoners, the engagements they have contracted. 

In such cases, their own Government shall not require of nor 
accept from them any service incompatible with the parole given. 



Article 

A prisoner of war cannot be forced to accept his liberty on 
parole ; similarly the hostile Government is not obliged to assent 
to the prisoner's request to be set at liberty on parole. 

Article XII. 

Any prisoner of war, who is liberated on parole and recaptured, 
bearing arms against the Government to whom he had pledged his 
honour, or against the allies of that Government, forfeits his right 
to be treated as a prisoner of war, and can be brought before the 
Courts. 

Article XIII. 

Individuals who follow an army without directly belonging to it, 
such as newspaper correspondents and reporters, sutlers, con- 
tractors, who fall into the enemy's hands, and whom the latter 
think tit to detain, have a right to be treated as prisoners of war, 
provided they can produce a certificate from the military authorities 
of the army they were accompanying. 

Article XIV. 

A Bureau for information relative to prisoners of war is insti- 
tuted, on the commeucement of hostilities, in each of the belli- 
gerent States and, when necessary, in the neutral countries on 
whose territory belligerents have been received. This Bureau is 
intended to answer all inquiries about prisoners of war, and is 
furnished by the various services concerned with all the necessary 
information to enable it to keep an individual return for each 
prisoner of war. It is kept informed of internments and changes, 
as well as of admissions into hospital and deaths. 

It is also the duty of the Information Bureau to receive and 
collect all objects of personal use, valuables, letters, &c., found on 
the battlefields or left by prisoners who have died in hospital or 
ambulance, and to transmit them to those interested. 



THE HAGUE CONVENTION 1899 ANNEX. 239 

Article XV. Oh. XIV. 

Relief Societies for prisoners of war, which are regularly con- 
stituted in accordance with the law of the country with the object 
of serving as the intermediary for charity, shall receive from the 
belligerents for themselves and their duly accredited agents every 
facility, within the bounds of military requirements and Adminis- 
trative Regulations, for the effective accomplishment of their 
humane task. Delegates of these Socities may be admitted to the 
places of internment for the distribution of relief, as also to the 
halting places of repatriated prisoners, if furnished with a personal 
permit by the military authorities, and on giving an engagemeno 
in writing to comply with all their Regulations for order and 
police. 

Article XVI. 

The Information Bureau shall have the privilege of free postage. 
Letters, money orders, and valuables, as well as postal parcels 
destined for the prisoners of war or dispatched by them, shall be 
free of all postal duties, both in the countries of origin and 
destination, as well as in those they pass through. 

Gifts and relief in kind for prisoners of war shall be admitted 
free of all duties of entry and others, as well as of payments for 
carriage by the Government railways. 

Article XVII. 

Officers taken prisoners may receive, if necessary, the full pay 
allowed them in this position by their country's regulations, the 
amount to be repaid by their Government. 

Article XVIII. 

Prisoners of war shall enjoy every latitude in the exercise of 
their religion, including attendance at their own church services, 
provided only they comply with the regulations for order and 
police issued by the military authorities. 

Article XIX. 

The wills of prisoners of war are received or drawn up on the 
same conditions as for soldiers of the national army. 

The same rules shall be observed regarding death certificates, as 
well as for the burial of prisoners of war, due regard being paid 
to their grade and rank. 

Article XX. 

After the conclusion of peace, the repatriation of prisoners of 
war shall take place as speedily as possible. 

Chapter III. ON THE SICK AND WOUNDED. 

Article XXL 

The obligations of belligerents with regard to the sick and 
wounded are governed by the Geneva Convention of the 22nd 
August, 1864, subject to any modifications which may be 
introduced into it. 



240 THE LAWS AND CUSTOMS OF WAR. 

Ch. XIV. SECTION II. ON HOSTILITIES. 



Cliapter I. ON MEANS OF INJURING THE ENEMY, SIEGES, 
AND BOMBARDMENTS. 

Article XXII. 

The right of belligerents to adopt means of injuring the enemy 
is not unlimited. 

Article XXIII. 

Besides the prohibitions provided by special Conventions, it is 
especially prohibited : 

(a.) To employ poison or poisoned arms ; 

(6.) To kill or wound treacherously individuals belonging to the 
hostile nation or army ; 

(c.) To kill or wound an enemy who, having laid down arms, or 
having no longer means of defence, has surrendered at discretion ; 

(d.) To declare that no quarter will be given ; 

(e.) To employ arms, projectiles, or material of a nature to cause 
superfluous injury ; 

(/.) To make improper use of a flag of truce, the national flag, 
or military ensigns and the enemy's uniform, as well as the distinc- 
tive badges of the Geneva Convention ; 

(g.) To destroy or seize the enemy's property, unless such de- 
struction or seizure be imperatively demanded by the necessities 
of war. 

Article XXIV. 

Ruses of war and the employment of methods necessary to 
obtain information about the enemy and the country, are con- 
sidered allowable. 

Article XXV. 

The attack or bombardment of towns, villages, habitations or 
buildings which are not defended, is prohibited. 

Article XXVL 

The Commander of an attacking force, before commencing a 
bombardment, except in the case of an assault, should do all he can 
to warn the authorities. 

Article XXVII. 

In sieges and bombardments all necessary steps should be taken 
to spare as far as possible edifices devoted to religion, art, science, 
and charity, hospitals, and places where the sick and wounded are 
collected, provided they are not used at the same time for military 
purposes. 

The besieged should indicate these buildings or places by some 
particular and visible signs, which should previously be notified to 
the assailants. 

Article XXVIII. 

The pillage of a town or place, even when taken by assault, is 
prohibited. 

Chapter II. ON SPIES. 

Article XXIX. 

An individual can only be considered a spy if, acting clandestinely, 
or on false pretences, he obtains, or seeks to obtain information in 



THE HAGUE CONVENTION, 1899 ANNEX. 241 

the zone of operations of a belligerent, with the intention of Ch. XIV. 
communicating it to the hostile party. 

Thus, soldiers not in disguise who have penetrated into the zone 
of operations of a hostile army to obtain information are not con- 
sidered spies. Similarly, the following are not considered spies : 
soldiers or civilians, carrying out their mission openly, charged 
with the delivery of despatches destined either for their own army 
or for that of the enemy. To this class belong likewise individuals 
sent in balloons to deliver despatches, and generally to maintain 
communication between the various parts of an army or a territory. 

Article XXX. 

A spy taken in the act cannot be punished without previous 
trial. 

Article XXXI. 

A spy who, after rejoining the army to which he belongs, is 
subsequently captured by the enemy, is treated as a prisoner of 
war, and incurs no responsibility for his previous acts of espionage. 

Chapter III. ON FLAGS or TRUCE 

Article XXXII. 

An individual is considered as bearing a flag of truce who is 
authorized by one of the belligerents to enter into communication 
with the other, and who carries a white flag. He has a right to 
inviolability, as well as the trumpeter, bugler, or drummer, the 
flag-bearer, and the interpreter who may accompany him. 

Article XXXIII. 

The Chief to whom a flag of truce is sent is not obliged to receive 
it in all circumstances. 

He can take all steps necessary to prevent the envoy taking 
advantage of liis mission to obtain information. 

In case of abuse, he has the right to detain the envoy tem- 
porarily. 

Article XXXIV. 

The envoy loses his rights of inviolability if it is proved beyond 
doubt that he has taken advantage of his privileged position to 
provoke or commit an act of treachery. 

Chapter IV. ON CAPITULATIONS. 

, Article XXXV. 

Capitulations agreed on between the Contracting Parties must 
be in accordance with the rules of military honour. 

When once settled, they must be scrupulously observed by both 
the parties. 

Chapter V. ON ARMISTICES. 

Article XXXVI. 

An armistice suspends military operations by mutual agreement 
between the belligerent parties. If its duration is not fixed, the 
belligereiit parties can resume operations at any time, provided 
always the enemy is warned within the time agreed upon, in 
accordance with the terms of the armistice. 

(M.L.) Q 



S42 THE LAWS AND CUSTOMS OF WAR. 

Oh, XTV. Article XXXVII. 

An armistice may be general or local. The first suspends all 
military operations of the belligerent States ; the second, only 
those between certain fractions of the belligerent armies and in a 
fixed radius. 

Article XXXVIII. 

An armistice must be notified officially, and in good time, to the 
competent authorities and the troops. Hostilities are suspended 
immediately after the notification, or at a fixed date. 

Article XXXIX. 

It is for the Contracting Parties to settle, in the terms of the 
armistice, what communications may be held, on the theatre of 
war, with the population and with each other. 

Article XL. 

Any serious violation of the armistice by one of the parties gives 
the other party the right to denounce it, and even, in case of 
urgency, to recommence hostilities at once. 

Article XLI. 

A violation of the terms of the armistice by private individuals 
acting on their own initiative, only confers the right of demanding 
the punishment of the offenders, and, if necessary, indemnity for 
the losses sustained. 



SECTION III. ON MILITARY AUTHORITY OVER HOSTILE 

TERRITORY. 



Article XLI I. 

Territory is considered occupied when it is actually placed under 
the authority of the hostile army. 

The occupation applies only to the territory where such authority 
is established, and in a position to assert itself. 

Article XLIII. 

The authority of the legitimate power having actually passed 
into the hands of the occupant, the latter shall take all steps in his 
power to re-establish and insure, as far as possible, public order 
^uid safety, while respecting, unless absolutely prevented, the laws 
m force in the country. 

Article XLIV. 

Any compulsion of the population of occupied territory to take 
part in military operations against its own country is prohibited. 

Article XLV. 

Any pressure on the population of occupied territory to take the 
oath to the hostile Power is prohibited. 

Article XL VI. 

Family honours and rights, individual lives and private property, 
as well as religious convictions and liberty, must be respected. 
Private property cannot be confiscated. 

Article XL VI L 
JPiilage is formally prohibited. 



THE HAGUE CONVENTION, 1899 ANNEX. 243 

Article XL VI LI. Ch.JCIV. 

If, in the territory occupied, the occupant collects the taxes, dues, 
and tolls imposed for the benefit of the State, he shall do it, as far 
as possible, in accordance with the rules in existence and the 
assessment in force, and will in consequence be bound to defray 
the expenses of the administration of the occupied territory on the 
same scale as that by which the legitimate Government was bound. 

Article, XLIX. 

If, besides the taxes mentioned in the preceding Article, the 
>ccupant levies other money taxes in the occupied territory, this 
an only be for military necessities or the administration of such 
erritory. 

Article L. 

No general penalty, pecuniary or otherwise, can be inflicted on 
the population on account of the acts of individuals for which it 
cannot be regarded as collectively responsible. 

Article LI. 

No tax shall be collected except under a written order and on 
the responsibility of a Commander-in-chief. 

This collection shall only take place, as far as possible, in accord- 
ance with the rules in existence and the assessment of taxes in force. 

For every payment a receipt shall be given to the taxpayer. 

Article LI1. 

Neither requisitions in kind nor services can be demanded from 

lommunes or inhabitants except for the necessities of the army of 

occupation. They must be in proportion to the resources of the 

country, and of such a nature as not to involve the population in the 

obligation of taking part in military operations against their country. 

These requisitions and services shall only be demanded on the 
authority of the Commander in the locality occupied. 

The contributions in kind shall, as far as possible, be paid for in 
ready money ; if not, their receipt shall be acknowledged. 

Article LIU. 

An army of occupation can only take possession of the cash, 
funds, and property liable to requisition belonging strictly to the 
State, depots of arms, means of transport, stores and supplies, and, 
generally, all movable property of the State which may be used for 
military operations. 

Railway plant, land telegraphs, telephones, steamers, and other 
ships, apart from cases governed by maritime law, as well as depots 
of arms and, generally, all kinds of war material, even though 
belonging to Companies or to private persons, are likewise material 
which may serve for military operations, but they must be restored 
at the conclusion of peace, and indemnities paid for them. 

Article LTV. 

The plant of railways coming from neutral States, whether the 
property of those States, or of Companies, or of private persons, 
shall be sent back to them as soon as possible. 

Article L \". 

The occupying State shall only be regarded as administrator and 
usufructuary of the public buildings, real property, forests, and 
agricultural works belonging to the hostile State, and situated i 
the occupied country. It must protect the capital of these 
properties, and administer it according to the rules of usufruct. 
(M.L.) Q 2 



THE LAWS AND CUSTOMS OF WAR. 

Ch. XIV. Article L VI. 

The property of the communes, that of religious, charitable, and 
educational institutions, and those of arts and science, even when 
State property, shall be treated as private property. 

All seizure of, and destruction, or intentional damage done to 
such institutions, to historical monuments, works of art or science, 
is prohibited, and should be made the subject of proceedings. 



SECTION IV. ON THE INTERNMENT OF BELLIGERENTS 
AND THE CARE OF THE WOUNDED IN NEUTRAL 
COUNTRIES. 

Article L VII. 

A neutral State which receives in its territory troops belonging 
to the belligerent armies shall intern them, as far as possible, at a 
distance from the theatre of war. 

It can keep them in camps, and even confine them in fortresses 
or localities assigned for this purpose. 

It shall decide whether officers may be left at liberty on giving 
their parole that they will not leave the neutral territory without 
authorization. 

Article L VIII. 

Failing a special Convention, the neutral State shall supply the 
interned with the food, clothing and relief required bv humanity. 

At the conclusion of peace, the expenses caused by the internment 
shall be made good. 

Article LIX. 

A neutral State may authorize the passage through its territory 
of wounded or sick belonging to the belligerent armies, on condition 
that the trains bringing them shall carry neither combatants nor 
war material. In such a case, the neutral State is bound to adopt such 
measures of safety and control as may be necessary for the purpose. 

Wounded and sick brought under these conditions into neutral 
territory by one of the belligerents, and belonging to the hostile 
party, must be guarded by the neutral State, so as to insure iheir 
not taking part again in the military operations. The same duty 
shall devolve on the neutral State with regard to wounded or sick 
of the other army .who may be committed to its care. 

Article LX. 

The Geneva Convention applies to sick and wounded interned in 
neutral territory. 

IV. 

THE GENEVA CONVENTION, 1906. 

For the Amelioration of the Condition oj the Wounded and Sick 
in Armies in the Field. 



Chapitre Premier. DBS BLESSES ET MALADES. 

Article Premier. 

Les militaires et les autres personnes omciellemeiit attachees aux 
armees, qui seront blesses ou malades, devront tre respectes et 
soignes, sans distinction de nationalite, par le belligerant qui les 
aura en son pouvoir. 



THE GENEVA CONVENTION, 1906. 245 

Toutefois le belligerant, oblige d'abandonuer des malades ou des Oh. XIV. 
blesses a son adversaire, laissera avec eux, autant que les circon- 
stances militaires le permettront, une partie de son personnel et de 
son materiel sauitaires pour coutribuer a les soigner. 

Article 2. 

Sous reserve des soins a leur fournir en vertu de Particle prece- 
dent, les blesses ou malades d'une arniee tombes au pouvoir de 
1'autre belligerant sont prisouniers de guerre et les regies generates 
dii droit des gens concernant les prisonniers leur sont applicables. 

Cependant, les belligerants restent libres de stipuler entre eux, 
a Pegard des prisonniers blesses ou malades, telles clauses d'excep- 
tion ou de faveur qu'ils jugeront utiles ; ils auront, notarnment, la 
faculte de convenir : 

De se remettre reciproquement, apres un combat, les blesses 
laisses sur le champ de bataille ; 

De renvoyer dans leur pays, apres les avoir mis en etat d'etre 
transported ou apres guerison, les blesses ou malades qu'ils lie 
voudront pas garder prisonniers ; 

De remettre a un Etat neutre, du cousentement de celui-ci, ,des 
blesses ou malades de la partie adverse, a la charge par PEtat 
neutre de les interner jusqu'a la fin des hostilites. 

Article 3. 

Apres chaque combat, Poccupant du champ de bataille prendra 
des mesures pour rechercher les blesses et pour les faire proteger, 
ainsi que les niorts, coutre le pillage et les ruauvais traitements. 

II veillera a ce que Pinhumation 'ou Pincineration des morts soit 
precedee d'un examen attentif de leurs cadavres. 

Article 4. 

Chaque belligerant enverra, des qu'il sera possible, aux autorites 
de leur pays ou de leur arniee les marques ou pieces militaires 
d'identite trouvees sur les morts et 1'etat nominatif des blesses ou 
malades recueillis par lui. 

Les belligerants se tiendront reciproquement au courant des 
internements et des mutations, ainsi que des entrees dans les 
hopitaux et des deces survenus parmi les blesses et malades en 
leur pouvoir. Ils recueillerout tous les objets d'un usage personnel, 
valeurs, lettres, etc., qui seront trouves sur les champs de bataille 
ou delaiss3s par les blesses ou malades decedes dans les etablisse- 
ments et formations sauitaires, pour les faire tranrnettre aux 
interesses par les autorites de leur pays. 

Article 5. 

L'autorite militaire pourra faire appel au zele charitable des 
habitants pour recueillir et soigner, sous son controle, des blesses 
ou malades des armees, en accordant aux personnes ayant repondu 
a cet appel une protection speciale et certaines immunites. 

Chapitre II. DES FORMATIONS ET ETABLISSEMENTS SANITAIRES. 

Article 6. 

Les formations sanitaires mobiles (c'est- a-dire celles qui sont 
destinees a accompagner les armees en campagne) et les etablisse- 
ments fixes du service de sante seront respectes et proteges par les 
belligerants. 

Article 7. 

La protection due aux formations et etablissements sanitaires 
cesse si 1'on en use pour commettre des actes nuisibles a Pennemi. 



246 THE LAWS AND CUSTOMS OF WAR. 

Ch. XIV. Article 8. 

Ne sout pas considered comme etant de nature a priver une 
formation ou un etablissement sanitaire de la protection assuree 
par 1'article 6 : 

1. Le fait que le personnel de la formation ou de 1'etablissement 
est arme et qu'il use de ses armes pour sa propre defense ou celle 
de ses malades et blesses ; 

2. Le fait qu'a defaut d'innrmiers armes, la formation ou 
1'etablissement est garde par un piquet ou des sentinelles mums 
d'un mandat regulier ; 

3. Le fait qu'il est trouve dans la formation ou 1'etablissement 
des armes et cartouches retirees aux blesses et n'ayant pas encore 
6te versees au service competent. 

C'hapitre III. Du PERSONNEL. 

Article 9. 

Le personnel exclusivement affecte a Penlevement, au transport 
et au traitement des blesses et des malades, ainsi qu'a Pad ministra- 
tion des formations et etablissemeuts sanitaires, les aumouiers 
attaches aux armees, seront respectes et proteges en toute circon- 
stance ; s'ils tombent entres les mains de Pennemi, ils ne seront pas 
traites comme prisonniers de guerre. 

Ces dispositions s'appliquent au personnel de garde des formations 
et etablissements sanitaires dans le cas prevu a Particle 8, n 2. 

Article 10. 

Est assimile au personnel vise a Particle precedent le personnel 
des Societes de secours volontaires dument reconnues et autorisees 
par leur Gouvernement, qui sera employe dans les formations et 
etablissements sanitaires des armees, sous la reserve que ledit 
personnel sera soumis aux lois et ruglements militaires. 

Chaque Etat doit notifier a Pautre soit des le temps de paix, 
soit a Pouverture ou au cours des bostilites, en tout cas avant tout 
emploi effectif, les noms des Societes qu'il a autorisees a preter leur 
concours, sous sa responsabilite, au service sanitaire officiel de ses 
armees. 

Article 11. 

Une Societe reconnue d'un pays neuti-e ne j)eut preter le 
concours de ses personnels et formations sanitaires a un belligerant 
qu'avec Passentiment prealable de son propre Gouvernement et 
1'autorisation du belligerant lui-meiue. 

Le belligerant qui a accepte le secours est tenu, avant tout 
emploi, d'en faire la notification a son eunemi. 

Article 12. 

Les personnes designees dans les articles 9, 10 et 11 continueront, 
apres qu'elles serout tombees au pouvoir de Pennemi, a remplir 
leurs fonctions sous sa direction. 

Lorsque leur concours ne sera plus indispensable, elles seront 
renvoyees a leur armee ou a leur pays dans les delais et suivant 
1'itineraire compatibles avec les ne"cessites militaires. 

Elles emporteront, alors, les effets, les instruments, les armes et 
les chevaux qui sont leur propriete particuliere. 

Article 13. 

L'ennemi assurera au personnel vise par Particle 9, pendant qu'L 
sera en son pouvoir, les memes allocations et la meme solde qu'au 
personnel des memes grades de son arm6e. 



THE GENEVA CONVENTION, 1906. 247 

Chapitre IV. Du MATERIEL. Oh. XIV. 

Article 14. 

Les formations sanitaires mobiles conserveront, si elles tombent 
an pouvoir de I'ennemi, leur materiel, y compris les attelages, quels 
que soient les moyens de trausport et le personnel conducteur. 

Toutefois, 1'autorite militaire competente aura la faculte de s'ei> 
servir pour les soins des blesses et malades ; la restitution du 
materiel aura lieu dans les conditions prevues pour le personnel 
sanitaire, et, autant que possible, en nieme temps. 

Article 15. 

Les bailments et le materiel des etablissements fixes demeureni 
soumis aux lois de la guerre, rnais ne pourront etre detournes de 
leur emploi, tantqu'ils seront necessaires aux blesses etaux malades. 
Toutefois, les commandants des troupes d'operations pourront 
n disposer, en cas de necessites militaires importantes, en assurant 
an prealable le sort des blesses et malades qui s'y trouvent. 

Article 16. 

Le materiel des Societes de secours, admises au benefice de la 
Convention conformement aux conditions determinees par celle-ci, 
est considere comme propriete privee et, comme tel, respecte en 
toute circonstan.ee, sauf le droit de requisition reconnu aux belli- 
gerants selon les lois et usages de la guerre. 

Chapitre V. DES CONVOIS D'EVACUATIONV 

Article 17. 

Les convois d'evacuation seront traites comme les formations!* 
sanitaires mobiles, sauf les dispositions speciales suivantes : 

1 Le belligerant interceptant un convoi pourra, si les necessites 
militaires 1'exigent, le disloquer en se chargeant des malades efe 
blesses qu'il contient. 

2 Dans ce cas, 1'obligation de renvoyer le personnel sanitaire, 
prevue a 1'article 12, sera etendue a tout le personnel militaire 
prepose au transport on a la garde du convoi et muni a cet effet 
d'un mandat regulier. 

L'obligation de rendre le materiel sanitaire, prevue a 1'article 14, 
s'appliquera aux trains de cheniins de fer et bateaux de la naviga- 
tion interieure specialeuient organises pour les evacuations, ainsi 
qu'au materiel d'amenagement des voitures, trains et bateaux 
ordinaires appartenant au service de sante. 

Les voitures militaires, autres que celles du service de sante ? 
pourront etre capturees avec leurs attelages. 

Le personnel civil et les divers moyens de transport provenant 
de la requisition, y compris le materiel de chemin de fer et lea 
bateaux utilises pour les convois, seront soumis aux regies generalea 
du droit des gens. 

Chapitre VI. Du SIGNE DISTINCTIF. 

Article 18. 

Par hommage pour la Suisse, le signe heraldique de la croix 
rouge sur foud blanc, forme par interversion des couleurs federales, 
est maintenu comme embleme et signe distinctif du service; 
sanitaire des armees. 

Article 19. 
Cet embleme figure sur les drapeaux, les brassards ainsi que 



248 THE LAWS AND CUSTOMS OF WAR. 

Oh. XIV. sur tout le materiel se rattachant au service sanitaire, avec la 
permission de 1'autorite militaire competente. 

Article 20. 

Le personnel protege en vertu des articles 9, alinea l er , 10 et 11 
porte, fixe au bras gauche, un brassard avec croix rouge sur fond 
blanc, delivre et timbre par 1'autorite militaire competente, accom- 
pagne d'un certificat d'identite pour les personnes rattachees au 
service de sante des arm6es et qui n'auraient pas d'uniforme 
militaire. 

Article 21. 

Le drapeau distinctif de la Convention ne pent etre arbore que 
sur les formations et etablissements sauitaires qu'elle ordonne de 
respecter et avec le consentement de 1'autorite militaire. II devra 
<Hre accompague du drapeau national du belligerant dont releve la 
formation ou Petablissemeut. 

Toutefois, les formations sanitaires tombees au pouvoir de 
1'ennemi n'arboreront pas d'autre drapeau que celui de la Croix- 
Rouge, aussi longtemps qu'elles se trouveront dans cette situation. 

Article 22. 

Les formations sanitaires des pays neutres qui, dans les con- 
ditions prevues par Particle 11, auraient ete autorisees a fournir 
leurs services, duivent arborer, avec le drapeau de la Convention, 
le drapeau national du belligerant dont elles relevent. 

Les dispositions du deuxieme alinea de Particle precedent leur 
sont applicables. 

Article 23. 

L'emblenie de la croix rouge sur fond blanc et les mots Crot'x- 
Rouge ou Croix de Geneve ue pourront etre employes, soit en temps 
de paix, soit en temps de guerre, que pour protege r ou designer les 
formations et etablissements sanitaires, le personnel et le mat6riel 
proteges par la Convention. 

Chapitre VII. DE L'APPLICATION ET DE L'EXE'CUTION DE LA 

CONVENTION. 

Article 24. 

Les dispositions de la presente Convention ne sont obligatoires 
que pour les Puissances contractantes, en cas de guerre entre deux 
ou plusieurs d'entre elles. Ces dispositions cesseront d'etre obliga- 
toires du moment ou Pune des Puissances belligerantes ne serait 
pas signataire de la Convention. 

Article 25. 

Les comma nclants-en-chef des aruiees belligerantes auront a 
pourvoir aux details d'execution des articles precedents, ainsi 
qu'aux cas non prevus, d'apres les instructions de leurs Gouverne- 
meuts respectifs et conformement aux principes generaux de la 
presente Convention. 

Article 26. 

Les Gouvernements siguataires prendront les mesures necessaires 
pour instruire leurs troupes, et specialemeut le personnel protege, 
des dispositions de la presente Convention et pour les porter a la 
eonnaissance des populations. 

Chapitre VIII. DE LA REPRESSION DES ABUS ET DES INFRACTIONS. 

Article 27. 

Les Gouvernements signataires, dont la legislation ne serait pas 
des a present sum'sante, s'engagent a pi-endue ou a proposer a leurs 



THB GiSNEVA CONVENTION, 1906. 249 

legislatures, les mesures nticessaires pour empe"cher en tout temps ch. XIV. 

1'emploi, par des particuliers ou par des societes autres que eel les 

y ayant droit en vertu de la presente Convention, de I'emblenie on 

de la denomination de Crowe-Rouge ou Croix de Geneve, notamment 

dans un but commercial, par le moyen de marques de fabrique ou 

de commerce. 

L'interdiction de 1'emploi de Pembleme ou de la denomination 
dont il s'agit produira son effet a partir de 1'epoque determinee par 
chaque legislation et, an plus tard, cinq ans apres la mise en vigueur 
de la presente Convention. D&s cette mise en vigueur, il ne sera 
plus licite de prendre une marque de fabrique ou de commerce 
contraire a 1'interdiction. 

Article 28. 

Les Gouvernements signataires s'engagent egalement a prendre 
ou a proposer a leurs legislatures, en cas d'iusuffisauce de leurs lois 
penales militaires, les mesui-es necessaires pour reprimer, en temps 
de guerre, les actes individuals de pillage et de mauvais traitements 
envers des blesses et malades des arruees, ainsi que pour punir, 
comme usurpation d'insignes militaires, 1'usage abusif du drapeau 
et du brassard de la Croix-Houge par des militaires ou des 
particuliers non proteges par la presente Convention. 

Us se commuuiqueront, par 1'intermediaire du Couseil federal 
suisse, les dispositions relatives a cette repression, au plus tard dans 
les cinq ans de la ratification de la presente Convention. 

Dispositions Generales. 

Article 29. 

La presente Convention sera ratitiee aussi tot que possible. 

Les ratifications seront deposees a Berne. 

II sera dresse du dep6t de chaque ratification un proces-verbal 
dont une copie, certifiee conforme, sera remise par la voie diploma- 
tique a toutes les Puissances contractantes. 

Article 30. 

La presente Convention entrera en vigueur pour chaque Puissance 
six mois apres la date du depot de sa ratification. 

Article 31. 

La presente Convention, dument ratifiee, reniplacera la Conven- 
tion du 22 aout 1864 dans les rapports entre les Etats contractants. 

La Convention de 1864 reste en vigueur dans les rapports entre 
les Parties qui 1'ont signee et qui ne ratifieraient pas egalement la 
presente Convention. 

Article 32. 

La presente Convention pourra, jusqu'au 31 decembre prochain, 
etre signee par les Puissances representees a la Conference qui s'est 
ouverte a Geneve le 11 juin 1906, ainsi que par les Puissances non 
representees a cette Conference qui ont signe la Convention de 1864. 

Celles de ces Puissances qui, au 31 decembre 1906, n'auront pas 
signe la presente Convention, resteront libres d'y adherer par la 
suite. Elles aurout a faire connaitre leur adhesion au moyen d'une 
notification ecrite adressee au Conseil federal suisse et conimuniquee 
par celui-ci a toutes les Puissances contractantes. 

Les autres Puissances pourront demander a adherer dans la 
rneme forme, mais leur deiuande ne produira effet que si, dans le 
delai d'uu an a partir de la notification au Conseil federal, celui-ci 
n'a regu d'opposition de la part d : aucune des Puissances con- 
tractantes. 



250 THE LAWS AND CUSTOMS OF WAR. 

Oh. XIV. Article 33. 

Chacune des Parties coutractantes aura la faculte de denoncer la 
presents Convention. Cette denonciation ne produiva ses effets 
qu'un an a.pres la notification faite par ecrit au Conseil federal 
suisse ; celui-ci communiquera immediatement la notification a 
toutes les autres Parties contractantes. 

Cette denonciation ne vaudra qu'a 1'egard de la Puissance qui 
1'aura notifiee. 

En foi de quoi, les Plenipotentiaires out signe la presente Con- 
vention et 1'ont revetue de leurs cachets. 

Fait a Geneve, le six juillet mil neuf cent six, en un seul 
exemplaire, qui restera depose dans les archives de la Confedera- 
tion suisse, et dont des copies, certifiees conformes, serout remises 
par la voie diplomatique aux Puissances contractantes. 



(TRANSLATION.) 



Chapter I. THE WOUNDED AND SICK. 

Article 1. 

Officers and soldiers, and other persons officially attached to 
armies, shall be respected and taken care of when wounded or sick, 
by the belligerent in whose power they may be, without distinction 
of nationality. 

Nevertheless, a belligerent who is compelled to abandon sick or 
wounded to the enemy shall, as far as military exigencies permit, 
leave with them a portion of his medical personnel and material to 
contribute to the care of them. 

Article 2. 

Except as regards the treatment to be provided for them in virtue 
of the preceding Article, the wounded and sick of an army who fall 
into the hands of the enemy are prisoners of war. and the general 
provisions of international law concerning prisoners are applicable 
to them. 

Belligerents are, however, free to arrange with one another such 
exceptions and mitigations with reference to sick and wounded 
prisoners as they may judge expedient ; in particular they will be 
at liberty to agree 

To restore to one another the wounded left on the field after 
a battle ; 

To repatriate any wounded and sick whom they do not wish to 
retain as prisoners, after rendering them fit for removal or after 
recovery ; 

To hand over to a neutral State, with the latter's consent, the 
enemy's wounded and sick to be interned by the neutral State until 
the end of hostilities. 

Article 3. 

After each engagement the Commander in possession of the field 
shall take measures to search for the wounded, and to insure protec- 
tion against pillage and maltreatment both for the wounded and for 
the dead. 

He shall arrange that a careful examination of the bodies is made 
before the dead are buried or cremated. 

Article. 4. 
As early as possible each belligerent shall send to the authorities 



THE GENEVA CONVENTION, 1906. 251 

of the country or army to which they belong the military identifi- ch. XIV. 

cation marks or tokens found on the dead, and a nominal roll of the 

wounded or sick who have been collected by him. The belligerents 

shall keep each other mutually informed of any internments and 

changes, as well as of admissions into hospital and deaths, among 

the wounded and sick in their hands. They shall collect all the 

articles of personal use, valuables, letters, &c., wbich are found on 

the field of battle, or left by the wounded or sick who have died in 

the medical establishments or units, in order that such objects may 

be transmitted to the peisons interested by the authorities of their 

own country. 

Article 5. 

A competent military authority may appeal to the charitable 
zeal of the inhabitants to collect and take care of, under his direction, 
the wounded or sick of armies, granting to those who respond to 
the appeal special protection and certain immunities. 

Chapter II. MEDICAL UNITS AND ESTABLISHMENTS. 

Article 6. 

Mobile medical units (that is to say, those which are intended to 
accompany armies into the tield) and the fixed establishments of the 
medical service shall be respected and protected by the belligerents. 

Article 1. 

The protection to which medical units and establishments are 
entitled ceases if they are made use of to commit acts harmful to 
the enemy. 

Article 8. 

The following facts are not considered to be of a nature to 
deprive a medical unit or establishment of the protection guaranteed 
by Article 6 : 

1. That the personnel of the unit or of the establishment is 
armed, and that it uses its arms for its own defence or for that of 
the sick and wounded under its charge. 

2. That in default of armed orderlies the unit or establishment 
is guarded by a piquet or by sentinels, furnished with an authority 
in due form. 

3. That weapons and cartridges taken from the wounded and not 
yet handed over to the proper department are found in the unit or 
establishment. 

Chapter III. PERSONNEL. 

Article 9. 

The personnel engaged exclusively in the collection, transport, 
and treatment of the wounded and the sick, as well as in the 
administration of medical units and establishments, and the 
Chaplains attached to armies, shall be respected and protected 
under all circumstances. If they fall into the hands of the enemy 
they shall not be treated as prisoners of war. 

These provisions apply to the guard of medical units and estab- 
lishments under the circumstances indicated in Article 8 (2). 

Article 10. 

The personnel of Voluntary Aid Societies, duly recognized and 
authorized by their Government, who may be employed in the 
medical units and establishments of armies, is placed on the 
same footing as the personnel referred to in the preceding Article, 
provided always that the first-mentioned personnel shall be 
subject to military law and regulations. 



252 THE LAWS AND CUSTOMS OF WAR. 

Jh. XIV. Each State shall notify to the other, either in time of peace or at 
the commencement of or during the course of hostilities, but in 
every case before actually employing them, the names of the 
Societies which it has authorized, under its responsibility, to 
render assistance to the regular medical service of its armies. 

Article 11. 

A recognized Society of a neutral country can only afford the 
assistance of its medical personnel and units to a belligerent with 
the previous consent of its own Government and the authorization 
of the belligerent concerned. 

A belligerent who accepts such assistance is bound to notify the 
fact to his adversary before making any use of it. 

Article 12. 

The persons designated in Articles 9, 10, and 11, after they have 
fallen into the hands of the enemy, shall continue to carry on their 
duties under his direction. 

When their assistance is no longer indispensable, they shall be 
sent back to their army or to their country at such time and by 
such route as may be compatible with military exigencies. 

They shall then take with them such effects, instruments, arms, 
and horses as are their private property. 

Article 13. 

The enemy shall secure to the persons mentioned in Article 9, 
while in his" hands, the same allowances and the same pay as are 
granted to the persons holding the same rank in his own army. 

Chapter IV. MATERIAL. 

Article 14. 

If mobile medical units fall into the hands of the enemy they 
shall retain their material, including their teams, irrespectively of 
the means of transport and the drivers employed. 

Nevertheless, the competent military authority shall be free to 
use the material for the treatment of the wounded and sick. It 
hall be restored under the conditions laid down for the medical 
personnel, and so far as possible at the same time. 

Article 15. 

The buildings and material of fixed establishments remain subject 
to the laws of war, but may not be diverted from their purpose so 
lonir as they are necessary for the wounded and the sick. 

Nevertheless, the Commanders of troops in the rield may dispose 
of them in case of urgent military necessity, provided they make 
previous arrangements for the welfare of the wounded and sick 
who are found there. 

Article 16. 

The material of Voluntary Aid Societies which are admitted to 
the privileges of the Convention under the conditions laid down 
therein is considered private property, and, as such, to be 
respected under all circumstances, saving only the right of 
requisition recognized for belligerents in accordance with the laws 
and customs of war. 

Chapter V. CONVOYS OF EVACUATION. 

Article 17. 

Convoys of evacuation shall be treated like mobile medical unite, 
subject to the following special provisions : 



THE GENEVA CONVENTION, 1906. 253 

1. A belligerent intercepting a convoy may break it up if military Ch. XIV. 
exigencies demand, provided he takes charge of the sick and 
wounded who are in it. 

2. In this case, the obligation to send back the medical personnel, 
provided for in Article 12, shall be extended to the whole of the 
military personnel detailed for the transport or| the protection 
of the convoy and furnished with an authority in due form to that 
effect. 

The obligation to restore the medical material provided for in 
Article 14 shall apply to railway trains, and boats used in internal 
navigation, which are specially arranged for evacuations, as well as 
to the material belonging to the medical service for fitting up 
ordinary vehicles, trains, and boats. 

Military vehicles, other than those of the medical service, maybe 
captured with tlieir teams. 

The civilian personnel and the various means of transport obtained 
by requisition, including railway material and boats used for convoys, 
shall be subject to the general rules of international law. 

Chapter VI. THE DISTINCTIVE EMBLEM. 

Article 18. 

As a compliment to Switzerland, the heraldic emblem of the red 
cross on a white ground, formed by reversing the Federal colours, 
is retained as the emblem and distinctive sign of the medical 
service of armies. 

Article 1 9. 

With the permission of the competent military authority this 
emblem shall be shown on the flags and armlets (brassards), as well 
as on all the material belonging to the medical service. 

Article 20. 

The personnel protected in pursuance of Articles 9 (paragraph 1), 
10, and 11 shall wear, fixed to the left arm, an armlet (orassard) 
with a red cross on a white ground, delivered and stamped by 
the competent military authority and accompanied by a certificate 
of identity in the case of persons who are attached to the medical 
service of armies, but who have not a military uniform. 

Article 21. 

The distinctive flag of the Convention shall only be hoisted 
over those medical units and establishments which are entitled to be 
respected under the Convention, and with the consent of the mili- 
tary authorities. It must be accompanied by the national flag of 
the belligerent to whom the unit or establishment belongs. 

Nevertheless, medical units which have fallen into the hands 
of the enemy, so long as they are in that situation, shall not fly any 
other flag than that of the Eed Cross. 

Article 22. 

The medical units belonging to neutral countries which may be 
authorized to afford their services under the conditions laid down 
in Article 11 shall fly, along with the flag of the Convention, the 
national flag of the belligerent to whose army they are attached. 

The provisions of the second paragraph of the preceding Article 
are applicable to them. 



254 THE LAWS AND CUSTOMS OF WAR. 

Oh. XIV. Article 23. 

The emblem of the red cross on a white ground and the words 
" Red Cross " or " Geneva Cross " shall not be used, either in time 
of peace or in time of war, except to protect or to indicate the 
medical units and establishments and the personnel and material 
protected by the Convention. 

Chapter VII. APPLICATION AND CARRYING OUT OF THE CONVENTION. 

Article 24. 

The pi-o visions of the present Convention are only binding upon 
the Contracting Powers in the case of war between two or more of 
them. These provisions shall cease to be binding from the 
moment when one of the belligerent Powers is not a party to 
the Convention. 

Article 25. 

The Commanders-in-chief of belligerent armies shall arrange the 
details for carrying out the preceding Articles, as well as for 
cases not provided for, in accordance with the instructions of their 
respective Governments and in conformity with the general 
principles of the present Convention. 

Article 26. 

The Signatory Governments will take the necessary measures to 
instruct their troops, especially the personnel protected, in the 
provisions of the present Convention, and to bring them to the 
notice of the civil population. 

Chapter VIII. PREVENTION OF ABUSES AND INFRACTIONS. 

Article 27. 

The Signatory Governments, in countries the legislation of which 
is not at present adequate for the purpose, undertake to adopt or to 
propose to their legislative bodies such measures as may be necessary 
to prevent at all times the employment of the emJjlem or the name 
of Red Cross or Geneva Cross by private individuals or by Societies 
other than those which are entitled do so under the present 
Convention, and in particular for commercial purposes as a trade- 
mark or trading mark. The prohibition of the employment of the 
emblem or the'uames in question shall c( me into operation from 
the date fixed by each legislature, and at the latest five years 
after the present Convention comes into force. From that date it 
shall no longer be lawful to adopt a trade- mark or trading mark 
contrary to this prohibition. 

Article 28. 

The Signatory Governments also undertake to adopt, or to propose 
to their legislative bodies should their military law be insufficient 
for the purpose, the measures necessary for the repression in time 
of war of individual acts of pillage and maltreatment of the 
wounded and sick of armies, as well as for the punishment, as an 
unlawful employment of military insignia, of the improper use of 
the Red Cross flag and armlet (hrassard) l>y officers and soldiers or 
private individuals not protected by the present Convention. 

They shall communicate to one another, through the Swiss 
Federal Council, the provisions relative to these measures of 
repression at the latest within five years from the ratification of 
the present Convention 



THE GENEVA CONVENTION, 1906. 255 

GENERAL PROVISIONS. Ch. XIV. 

Article 29. 

The present Convention shall be ratified as soon as possible. 
The ratifications shall be deposited at Berne. 

When each ratification is deposited a proces-verbal shall be drawn 
up, and a copy thereof certified as .correct shall be forwarded 
through the diplomatic channel to all the Contracting Powers. 

Article 30. 

The present Convention shall come into force for each Power 
six mouths after the date of the deposit of its ratification. 

Article 31. 

The present Convention, duly ratified, shall replace the Con- 
vention of the 22ud August, 1864, in relations between the 
Contracting States. The Convention of 1864 remains in force 
between such of the parties who signed it who may not likewise 
ratify the present Convention. 

Article 32. 

The present Convention may be signed until the 31st December 
next by the Powers represented at the Conference which was 
opened at Geneva on the llth June, 1906. as also by the Powers, 
not represented at that Conference, which signed the Convention 
of 1864. 

Such of the aforesaid Powers as shall have not signed the 
present Convention by the 31st December, 1906, shall remain free 
to accede to it subsequently. They shall notify their accession by 
means of a written communication addressed to the Swiss Federal 
Council, and communicated by the latter to all the Contracting 
Powers. 

Other Powers may apply to accede in the same manner, but their 
request shall only take effect if within a period of one year from the 
notification of it to the Federal Council no objection to it reaches 
the Council from any of the Contracting Powers. 

Article 33. 

Each of the Contracting Powers shall be at liberty to denounce the 
present Convention. The denunciation shall not take effect until 
one year after the written notification of it has reached the Swiss 
Federal Council. The Council shall immediately communicate the 
notification to all the other Contracting Parties. 

The denunciation shall only affect the Power which has notified it. 

In witness whereof the Plenipotentiaries have signed the present 
Convention and have affixed thereto their seals. 

Done at Geneva the 6th July, 1906, in a single copy, which shall 
be deposited in the archives of the Swiss Confederation, and of 
which copies certified as correct shall be forwarded to the Con- 
tracting Powers through the diplomatic channel. 



ARMY ACT. 257 



PART II. 



THE ARMY ACT, RULES OF PROCEDURE, &c. 

THE ARMY (ANNUAL) ACT, 1907. 

EXTRACT FROM 

An Act to provide, during Twelve Months, for the Discipline and 
Regulation of the Army, (a.) 

WHEREAS the raising or keeping of a standing army within the 
United Kingdom of Great Britain and Ireland in time of peace, 
unless it be with the consent of Parliament, is against law : 

And whereas it is adjudged necessary by His Majesty and this 
present Parliament that a body of forces should be continued for 
the safety of the United Kingdom and the defence of the posses- 
sions of His Majesty's Crown, and that the whole number of such 
forces should consist of one hundred and ninety thousand, 
including those to be employed at the depots in the United 
Kingdom of Great Britain and Ireland for the training of 
recruits for service at home and abroad, but exclusive of the 
numbers actually serving within His Majesty's Indian possessions : 

And whereas it is also judged necessary for the safety of the 
United Kingdom, and the defence of the possessions of this realm, 
that a body of Royal Marine forces should be employed in His 
Majesty's fleet and naval service, under the direction of the Lord 
High Admiral of the United Kingdom, or the Commissioners for 
executing the office of Lord High Admiral aforesaid : 

And whereas the said marine forces may frequently be quartered 
or be on shore, or sent to do duty or be on board transport ships or 
vessels, merchant ships or vessels, or other ships or vessels, or they 
may be under other circumstances in which they will not be subject 
to the laws relating to the government of His Majesty's forces by sea : 

And whereas 110 man can be forejudged of life or limb, or 
subjected in time of peace to any kind of puni>hment within this 
realm, by martial law, or in any other manner than by the judgment 
of his peers and according to the known and established laws of 
this realm ; yet nevertheless, it being requisite, for the retaining 
all the before-mentioned forces, and other persons subject to 
military law, in their duty, that an exact discipline be observed, 
and that persons belonging to the said forces who mutiny or stir up 
sedition, or desert His Majesty's service, or are guilty of crimes and 
offences to the prejudice of good order and military discipline, be 
brought to a more exemplary and speedy punishment than the 
usual forms of the law will allow : 

And whereas the Army Act will expire in the year one thousand 44 <fe 45 Viet, 
nine hundred and seven on the following days : c - 5S - 

(K) In the United Kingdom, the Channel Islands, and the Isle of 
Man, on the thirtieth day of April ; and 

(b) Elsewhere in Europe, inclusive of Malta, also in the West 
Indies and Ameiica, on the thirty-first day of July ; and 



(a) See Army Act, g. 2., and eh. II, para. 35. 

(M.L.) 



253 



ARMY ACT. 



(<") Elsewhere, whether within or without His Majesty's 

dominions, on the thirty-first clay of December : 
Be it therefore enacted as follows : 

1. This Act may be cited as the Army (Annual) Act, 1907. 
*rmyAct 2. (1) The Army Act shall be and remain in force during the 
'or specified periods herein-after mentioned, and no longer, unless otherwise 
:imes. provided by Parliament (that is to say) : 

(a) Within the United Kingdom, the Channel Islands, and the 

Isle of Alan, from the thirtieth day of April one thousand 
nine hundred and seven to the thirtieth day of April one 
thousand nine hundred and eight, both inclusive ; and 

(b) Elsewhere in Europe, inclusive of Malta, also in the West 

Indies and America, from the thirty-first day of- July one 
thousand nine hundred and seven to the thirty-first day of 
July one thousand nine hundred and eight, both inclusive ; 
and 

(c) Elsewhere, whether within or without His Majesty's 

dominions, from the thirty-first day of December one 
thousand nine hundred and six to the thirty-first day of 
July one thousand nine hundred and eight, both 
inclusive ; 

(2) The Army Act, while in force, shall apply to persons subject 
to military law, whether within or without His Majesty's 
dominions. 

(3) A person subject to military law shall not be exempted from 
the provisions of the Army Act by reason only that the number of 
the forces for the time being in the service of His Majesty, exclusive 
of the marine forces, is either greater or less than the number 
herein-before mentioned. 

3. There shall be paid to the keeper of a victualling house for 
the accommodation provided by him in pursuance oi: the Army Act 
the prices specified in the First Schedule to this Act. 



FIRST SCHEDULE. 



Accommodation to be provided. 



Lodging and attendance for soldier where 
meals furnished. 

Breakfast as specified in Part I. of the 
Second Schedule to the Army Act. 

Hot dinner as so specified 

Supper as so specified 

Where no meals furnished, lodging and 
attendance, and candles, vinegar, salt, and 
the use of fire, and the necessary utensils 
for dressing and eating his meat. 

Ten pounds of oats, twelve pounds of hay, 
and eight pounds of straw per day for each 
horse. 

Lodging and attendance for officer ... 



Maximum Price. 



Sixpence per night. 
Fourpence each. 

Elevenpence half- 
penny each. 

Twopence halfpenny 
each. 

Sixpence per day. 



One shilling and nine- 
pence per day. 

Two shillings per 
night. 



. An Officer shall pay lor his food. 



25!) 
44 Sc 4"> VICT. Cit. 58. 



THE ARMY ACT. 

I 

ARRANGEMENT OP SECTIONS. 



Preliminary. 

SECTION 
Short title of Act . . . . , . . . . . . . . . 1 

Mode of bringing Act into force . . . . . . . . .-. 

Division of Act . . . . 3 



PART I. 
DISCIPLINE. 



CBIMES AND PUNISHMENTS. , 
Offences in respect of Military Service. 

Offences in relation to the enemy punishable with death . .. 4 

Offences in relation to the enemy not punishable with death . . 5 

Offences punishable more severely on active service than at other 

Limes v * 

Mutiny and Insubordination. 

Mutiny and sedition .. .. .. .. ,. .. .. 

Striking or threatening superior officer . . . . . . . . 8 

Disobedience to superior officer . . . . . . . . . . 9 

Insubordination .. .. .. .. .. .. . 10 

Neglect to obey garrison or other orders . . . . . . . . 11 

Desertion, Fraudulent Enlistment, and Absence icithout Leave. 

Desertion .. .. .. .. .. .. . .. 12 

Fraudulent enlistment . . . . . . . . , . . . 13- 

Assistance of or connivance at desertion .. . , .. .. 14 

Absence from duty without leave . . .. .. .. .. 15 

Disgraceful Conduct. 

Scandalous conduct of officer . . . . . . . . . , 3 6 

Fraud by persons in charge of money or goods . . . . . . 17 

Disgraceful conduct of soldier 13 

(M.L.) R 2 



260 ARMY ACT. 

Drunkenness. 

SECTION 

Drunkenness .. 

Offences in relation to Persons in Custody. 

Permitting escape of person in custody . . . . . . 20 

Irregular arrest or Confinement .. .. .. 

Escape from conGnerneiit .. .. .. .. 22 

Offences in relation to Property. 

Corrupt dealings in respect of supplies to forces . . . . 

Deficiency in and injury to equipment .. .. 

Offences in relation to False Documents and Statements. 

falsifying official documents and false declarations . . .. 25 

Neglect to report, and signing in blank . . . . . . . . 26 

False accusation, or false statement by soldier . . .. .. 27 

Offences in relation to Courts-martial* 

-Offences in relation to courts-martial . . . . . . . . 28 

'llse evidence .. .. .. . . .. .. .. .. 29 



Offences in relation to Billeting. 

Offences in relation to billeting .. .. .. ..30 

Offences in relation to Impressment of Carriages. 

Offences in relation to the impressment of carriages, and their 

attendants .. .. .. .. .. .. .. .. 31 

Offences in relation to Enlistment. 

'Enlistment of soldier or sailor discharged with ignominy or 

disgrace * . . . '>_ 

False answers or declarations on enlistment . . . . . . 33 

Oeneral offences in relation to enlistment . . . . . . . . 34 

Miscellaneous Military Offences. 

Traitorous words . . . . . . . . . . . . . . 35 

Injurious disclosures .. .. .. .. .. .. .. 36 

Ill-treating soldier .. .. .. .. .. .. .. 37 

Duelling and attempting to commit suicide . . . . . . 38 

Refusal to deliver to civil power officers and soldiers accused of 

civil offences . . . . . . . . . . . . . . 39 

Conduct to prejudice of military discipline . . . . . . 40 

Offences punishable by ordinary Law. 

Offences punishable by ordinary law of England . . . . . . 41 



Arrangement of Sections. 201 

Redress of Wrong a. 

SECTION 

Mode of complaint by officer. . . . ... . . . 42 

Mode of complaint by soldier . . . . . . . . . 43 

Punishments. 
Scale of punishments by courts-martial . . . . . . . . 

AEBEST AND TEIAL. 

Arrest. 
Custody of persons charged with offences . . . . . . . . 45 

Power of Commanding Officer. 
Power of commanding officer .. .. .. .. .. 46 

Courts-martial. 

Regimental courts-martial .. .. .. .. .. .. 47 

General and district courts-martial . . . . . . . . . . 48 

Field general courts-martial . . . . . . . . . . . . -49 

Courts-martial in general . . . . . . . . . > . . 59 

Challenges by accused .. .. .. .. .. 51 

Administration of oaths . . . . . . . . . . . . 52 

Procedure . . . . . . . . . . . . 53 

Confirmation, revision, and approval of sentences . . . . . . 54 

* * * * .. 55 

Conviction of less offence permissible on charge of greater .. ?C 

EXECUTION OF SENTENCE. 

Commutation and remission of sentences . . . . . . . . 67 

Effect of sentence of penal servitude .. .. .. .. 58 

Execution of sentences of penal servitude passed in the Unite') 

Kingdom .. .. .. . . .. .. .. .. 59 

Execution of sentences of penal servitude passed in India or a 

colony . . . . . . . . . . . . . . . . 60 

Execution of sentences of penal servitude passed in a foreign 

country . . . . . . . . . . . . . . . . 61 

General provisions applicable to penal servitude . . . . . . 62 

Execution of sentences of imprisonment and detention . . . . 63 

Supplemental provisions as to sentences of imprisonment and 

detention passed or being undergone in the United Kingdom, . 64 
Supplemental provisions as to sentences of imprisonment and 

detention passed or being undergone in India or colony .. 65 

Supplemental provisions as to sentences of imprisonment and 

detention passed in a foreign country . . . . . . . . 6G 

Removal of prisoner or soldier undergoing detention to piace 

where corps is serving . . . . . . . . . . . . 67 

Commencement of term of penal servitude, imprisonment, or 

detention . . . 68 



2(j2 -ARMY ACT. 

MISCELLANEOUS. 

Articles of War and Rules of Procedure. 

SECTION 
Power of His Majesty to make Articles of "War .. .. .. 69 

Power of His Majesty to make rules of procedure . . . . 70 

Command. 
Removal of doubts as to military command . . . . . . 71 

Inquiry as to and Confession of Desertion. 

Inquiry by court on absence of soldier. ... . . . . . . 72 

Confession by soldier of desertion or fraudulent enlistment . . 73 

Pro rost-3Iar$7i a I. 
Provost-marshal . . . . . . . . . . . . . . 74 

Restitution of Stolen Property. 
Power as to restitution of stolen properly .. .. .. ., 75 



PART II. 
ENLISTMENT. 



Period of Service. 

Limit of original enlistment . . . . . . . . . . . . 76 

Terms of original enlistment . . . . . . . . . . , . 77 

Change of conditions of service . . ,. .. .. ,. 78 

Reckoning and forfeiture of service .. .. .. .. 79 

Proceedings for Enlistment. 

Mode of enlistment and attestation .. .. .. .. .. 80 

Power of recruit to purchase discharge .. .. .. .. 81 

Appointment to Corps and Transfers. 

Enlistment for general service and appointment to corps . . 82 

Effect of appointment to a curpsand provision for transfers . . 83 

Re-engagement and Prolongation of Service. 

Re-engagement of soldiers . . . . . . . . . . . . 84 

Continuance in service after twenty-one years' service ., .. 85 
Re-engagement and continuance of service of non-commissioned 

officers .. . . . .. .. .. .. 8G 

Prolongation of service in certain cases .. .. .. .. 87 

In imminent national danger, His Majesty may continue soldiers 

in or require soldiers to re-enter army service , . . . . . 88 



Arrangement of Sections. 2G3 

Discharge and Transfer to Reserve Force. 

SECTION 

Transfer of soldiers to reserve when corps ordered abroad . . 89 

Discharge or transfer to reserve .. .. .. .. .. 90 

Delivery of lunatic soldier on discharge with liis wife or child at 

workhouse, or of dangerous lunatic at asylum ... .. 01 

Regulations as to discharge of soldiers . . . . . . . . 92 

Authorities to Enlist and Attest Recruit*. 

Regulations as to persons to enlist and enlistment of soldiers .. 93 

Justices of the peace for the purposes of enlistment . . . . 94 

Special Provisions as to Persons to Is enlisted. 

Enlistment of aliens, negroes, &c. .. .. .. .. .. 95 

Claims of masters to apprentices . . . . . . . . . . 90 

Application of apprentice provisions to indentured labourers .. 97 

Offences as to Enlistment. 

Penalty on unlawful recruiting .. .. .. .. .. P8 

Recruits punishable for false answers . . . . . . . . CO 

'Miscellaneous as to 'Enlistment. 

Validity of attestation and enlistment or re-engagement, . . ICO 
Definition for purposes of Part II of competent military authority 

and reserve . . . . . . . . . . . . . . ] 01 



PART III. 
BILLETING AND IMPRESSMENT OF CARRIAGES. 

Billeting of Officers and Soldiers. 

Suspension of 3 Chas. I, c. 1 ; 31 Chas. II,c.l; 6 Anne (I), c. 14, 

as to billeting . . . . . . . . . . . . . . 102 

Obligation of constable to provide billets for officers, soldiers, and 

horses .. .. .. .. .. . . .. . 103 

Liability to provide billets .. .. .. .. .. .. 104 

Officers, soldiers, and horses entitled to be billeted .. .. lOo 

Accommodation and payment on billet . . . . . . . . 106 

Annual list of keepers of victualling houses liable to billets . . 107 

Regulations as to grant of billets .. ., .. .. .. 103 

Offences in relation to Billeting. 

Offences by constables . . . . . . . . . . . . 109 

Offences by keepers of victualling houses .. .. .. .. 110 

Offences by officers or soldiers .. .. .. .. .. Ill 



<<;4 ARMY ACT. 

Impressment of Carriages. 

SECTIOS 

Supply of carriages, &c., for regimental baggage and stores on 

the march. 

Payment for and regulations as to carriages, animals, &c. 
Annual list of persons liable to supply carriages . . . . 

Supply of carriages and vessels in case of emergency . . 

Offences in relation to the Impressment of Carriages. 
Offences by constables .. .. .. ..116 

Offences by persons ordered to furnuh carriages, animals, or 
vessels .. .. 

Offences by officers or soldiers .. .. H^ 

Supplemental Provisions as to Billeting and Impressment of Carriages. 
Application to court of summary jurisdiction respecting sums 

due to keepers of victualling houses or owners of carriages, &c. 119 
Provisions as to constables, police authorities, and justices . . 120 
Fraudulent claim for carriages, animals, &c. .. .. 121 



PART IV. 



GENERAL PROVISIONS. 



Supplemental provisions as to Courts-martial. 

Royal warrant required for convening and confirming general 
courts- martial .. .. 

Authority of officer empowered to convene general courts-martial 

required for convening and confirming district court s-martial . . 123 

Right of person tried to copy of proceedings of court- martial ., 124 

Summoning and privilege of witnesses at courts-martial .. .. 125 

Misconduct of civilian at court-martial .. .. .. .. 126 

Court-martial governed by English law only . . . . . . 127 

Rules of evidence to be the same as in civil r-ourts . . 128 
Position of counsel at courts-martial .. .. ..129 

Provision in case of insane persons . . . . 130 

General provisions as to Prisons and Detention Barracks. 
Arrangements with Indian and colonial governments as to prisons 

and detention barraeis .. .. .. .. ..131 

Duty of governor of prison to receive prisoners, deserters, and 

absentees without leave .. .. .. .. 132 

Military Prisons and Detention Barracks. 
Establishment and regulation of military prisons and detention 

barracks . . . . . . . . 133 

Restrictions on confinement in prisons in India or colonies, not 

being military prisons .. . * .. 134 

Classification of prisoners . . . . . . . . 135 

***** 13fA 



Arrangement of Sections. 2G5 

Fay. 

SECTION 

Authorised deductions only to be made from pay . . .. . . 13G 

Penal stoppages from ordinary pay of officers .. .. .. 137 

Penal stoppages from ordinary pay of soldiers . . . . . . 133 

How deduction of pay may be remitted . . . . . . . . 139 

Supplemental as to deductions from ordinary pay. . .. .. 140 

Prohibition of assignment of military pay, pensions, &c. .. .. 141 

Punishment of false oath and personation . . . . . . . . 142 

Exemptions of Officers and Soldiers. 

Exemptions of o (fleers and soldiers from tolls .. .. .. 143 

Exemption of soldiers in respect to civil process .. .. .. 144 

Liability of soldier to maintain wife and children .. .. .. 145 

Officers not to be sheriff s or mayors .. .. .. .. .. 146 

Exemption from jury .. .. .. .. ., .. .. 147 

Court of Requests in India. 
* * * * * * 148-151 

Legal Penalties in Matters respecting Forces. 

Punishment for pretending to be a deserter .. .. .. 152 

Punishment for inducing soldiers to desert .. .. .. 153 

A pprehension of deserters .. .. .. .. .. ..154 

Penalty on trafficking in commissions .. .. . . .. 155 

Penalty on purchasing from soldiers regimental accessaries, equip- 
ments, stores, &c. .. .. .. .. .. .. .. 156 

Jurisdiction. 

Persons not to be tried twice . . . . . . . . . . . . 157 

Liability to military law in respect of status . . . . . . 158 

Liability to military law in respect of place of commission of 

offence .. .. .. .. .. .. .. .. 159 

Punishment not increased by trial elsewhere than offence com- 
mitted .. .. .. .. .. .. .. .. 160 

Liability to iiiilitary law in respect of time for trial of offences .. 161 

Adjustment of civil and military law .. .. .. .. 162 

Evidence. 

Regulations as to evidence .. .. .. .. .. .. 1G3 

Evidence of civil conviction or acquittal .. .. .. .. 16-i 

Evidence of conviction by court-martial . . . , . . . . 165 

Summary and other Legal Proceedings. 

Prosecution of offences, and recovery and application of Hues .. 166 

Summary proceedings in Scotland .. .. .. .. .. 167 

Summary proceedings in Isle of Man, Channel Islands, India, and 

the colonies .. .. .. .. '.. .. .. .. 168 

Power of Governor-General of India and legislature of colony 

as to fines ., .. .. .. .. .. ..- .. 169 

Protection of persons acting under Act .. .. .. .. 170 



266 ARMY ACT. 

Miscellaneous. 

SECTION 

Exercise of powers vested in holder of military office . . . . 171 

Provisions as to warrants and orders of military authorities . . 172 

Furlough in case of sickness .. .. .. .. .. ..173 

Licences of canteens . . . . . . . . . . . . . . 174 

Use of recreation rooms without licence .. .. .. 174A 



PART V. 



APPLICATION OF MILITARY LAW, SAVING PROVISIONS, 
AND DEFINITIONS. 



Persons subject to Military Law. 

Persons subject to military law as officers .. .. .. .. 175 

Persons subject to military law as soldiers .. . . .. . . 176 

Persons belonging to colonial forces and subject to military law 

as officers or soldiers . . . . . . . . . . . . 177 

Mutual relations of regular forces and auxiliary forces . . . . 178 

Modification of Act with respect to Royal Marines . . < . 179 

Modification of Act with respect to His Majesty's Indian forces 180 

Modification of Act with respect to auxiliary forces . . . . 181 

Special provisions as to warrant officers . . . . . . . 182 

Special provisions as to non-commissioned officer .. .1 .. 183 
Special provisions as to application of Act to persons not belong- 
ing to His Majesty's forces . . . . . . . . . . 184 

Saving Provisions. 

Special provisions as to prisoners and prisons in Ireland.. .. 185 
Saving of 29 & 30 Viet., c. 109, s. 88, as to forces when on board 

His Majesty's ships .. .. .. .. .. .. 186 

Definitions. 

Application of Act to Channel Islands ard Isle of Man . . . . 187 

Application of Act to ships . . . . . . ., . . . . 188 

Interpretation of term "active service" .. ., .. ,. 1SU 

Interpretation of terms .. .. .. .. .. .. 190 



PART VI. 



COMMENCEMENT AND APPLICATION OF ACT, AND 

REPEAL. 

* * * * .... 191-193 

SCHEDULES. 



Preliminary. 
THE ARMY ACT. 



[41 & 45 Yict. c. 53.] 



An Act to consolidate the Army Discipline and Regulation Act, 1879, Ss. 1-3. 
and the subsequent Acts ainendiny the same (a). 

Preliminary. 

1. This Act may be cited for all purposes as the Army Act. Short title 

of Act. 

2. This Act shall continue in force only for such time and subject Mode of 

, -,-. ,. bringing 
to such provisions as may be specified in an annual Act or larlia- Actirlo 

ment bringing into force, or continuing the same. 

XOTE. 

For explanation of the reasons for bringing this Act into force annually 
by a separate Act, see eh. ii, page 11, note (c/.); and para. 35. 

3. This Act is divided into five parts, relating to the following Divisicn of 
subject-matter ; that is to say, 

Part I, discipline : 
Part II, enlistment : 

Part III, billeting and impressment of carriages : 
Part IV, general provisions : 

Part V, application of military law, saving provisions, and defini- 
tions. 



PART I. 
DISCIPLINE. 

CRIMES AND PUXISUMKXTS. 



Offences in respect of Military Sen-ice. 

4. Every person subject to military law who commits any of the Part I. 
following onences ; that is to say, s ^ 

(1.) Shamefully abandons or delivers up any garrison, place, post, Offences in 

relation to 
or guard, or uses any means to compel or inuuce any tne enemy 

- punislia'jla 

(a) The Act is printed with the amendments introduce,! by the Armv (Annual) w ith death. 
Act, 1862, and the subsequent Annual Acts down to and inclusive of the Act of 
1907, in accordance with the directions of 4 '19 Viet. c. 8, and also incorporates the 
amendments made by the Territorial and Keserve Forces Act, 1907. 

Under s. H of the Army (Annual) Act. H'Oi, amendments of the Army Act con- 
tained in any Act continuing the Army Ait come into operation in any place as from 
the day from which the Army Act is continued in that place. 



268 ARMY ACT. 

governor, commanding officer, or other person shamefully 

to abandon or deliver up any garrison, place, post, or guard, 

which it was the duty of such governor, officer, or 

person to defend ; or 
(2.) Shamefully casts away his arms, ammunition, or tools in the 

presence of the enemy ; or 
(3.) Treacherously holds correspondence with or gives intelligence 

to the enemy, or treacherously or through cowardice sends 

a flag of truce to the enemy ; or 
(4.) Assists the enemy with arms, ammunition, or supplies, or 

knowingly harbours or protects an enemy not being a 

prisoner ; or 
(5.) Having been made a prisoner of war, voluntarily serves 

with or voluntarily aids the enemy ; or 
(6.) Knowingly does when on active service any act calculated 

to imperil the success of His Majesty's forces or any part 

thereof ; or 
(7.) Misbehaves or induces others to misbehave before the enemy 

in such manner as to show cowardice, 

shall on conviction by court-martial be liable to suffer death, or such 
less punishment as is in this Act mentioned. 

NOTE. 

Subject to military lar:. This includes not only officers and soldiers, but 
also camp followers, sutlers, &c. See ss. 175, 176, and as to natives of India, 
s. 180. 

Paragraph (1). Shamefully abandons, (j-c. This offence can only be com- 
mitted by the person in charge of the garrison, post, &c., and not by the 
subordinate under his command. The surrender of a place by an officer 
charged with its defence can only be justified by the utmost necessity, such as 
want of provisions or water, the absence of hope of relief, and the certainty 
or extreme probability that no further efforts could prevent the place with 
its garrison, their arms and magazines, falling into the hands of the enemy. 
Unless the necessity is shown, the conclusion must be that the surrender 
or abandonment was shameful, and therefore an offence under this section. 
The vror&post includes any point or position (whether fortified or not) which 
a detachment may be ordered to hold ; and the abandonment of a post would 
also include the abandonment of a siege if there were no circumstances to 
warrant such a measure. It has not the same meaning as iu s. (J (1), where 
it has reference to an individual. 

A charge under the lirst part of this sub-section must detail some cir- 
cumstances which make the abandonment in a military sense shameful. 

Paragraph (2). 8/iamrJ'ully casts away. The charge must show tho 
circumstances which make the act in a military sense shameful. The word 
"shamefully" is held to mean by a positive and disgraceful dereliction of 
duty, and not merely through negligence or misapprehension or error of judg- 
ment. 

Paragraph (3). Treacherously or through cowardice. The charge must show 
the circumstances which indicate the treachery or cowardice. If there is 
no treachery or cowardice, ttie charge should be laid under section 5 (4). 



Discipline (Crimes and Punishments}. 2G9 

Paragraph (4). Supplies. This would include the taking any steps to Part I. 
restore a supply of water cut off by our forces. 

oa 4 ^7 

Knowingly. Evidence should if possible be given that the accused knew 
the person harboured or protected to be an enemy; but if the fact of the 
harbouring or protecting is proved, the court may infer knowledge from 
the circumstances. The same observation applies to " voluntarily " in (5) and 
to " knowingly " in (6). See note to Eule GO (A). 

Paragraph (6). For definition of active service, see s. 18'J (1). 

Paragraph (7). This paragraph is confined to acts, worda, neglect, or 
omissions which show cowardice, and the charge must be framed accordingly. 
Drunkenness or treachery (unaccompanied by cowardice) cannot bo dealt 
with under this paragraph. 

MisMiaves. This means that the accused, from an unsoldierlike regard for 
his personal safety in the presence of the enemy, failed in respect of some 
distinct and feasible duty imposed upon him by a specified order or regulation, 
or by the well-understood custom of the service, or by the requirements of 
the case, as applicable to the position in which he was placed at the time. 

5. Every person subject to military law who on active service Offences in 

commits any of the following offences ; that is to say, theVnemy 

(1.) Without orders from his superior officer leaves the ranks, in abhvwHh" * 

order to secure prisoners or horses, or on pretence of taking deatb - 

wounded men to the rear ; or 
(2.) Without orders from his superior officer wilfully destroys 

or damages any property ; or 
(3.) Is taken prisoner, by want of due precaution, or through 

disobedience of orders, or wilful neglect of duty, or having 

been taken prisoner fails to rejoin His Majesty's service 

when able to rejoin the same ; or 
(4.) Without due authority either holds correspondence with, or 

gives intelligence to, or sends a flag of truce to the enemy ; 

or 
(5.) By word of mouth or in writing, or by signals, or otherwise, 

spreads reports calculated to create unnecessary alarm or 

despondency ; or 
(6.) In action, or previously to going into action, uses words 

calculated to create alarm or despondency, 

shall on conviction by court-martial be liable to suffer penal 
servitude, or such less punishment as is in this Act mentioned. 

NOTE. 

Paragraph (4). Without due authority. If prima. facie a want of authority 
is shown, it will rest with the accused to show that lie had authority, but any 
evidence of his having had authority which is known to the prosecutor 
should be adduced by the prosecutor. See rule GO (A) and note. The terms 
of this paragraph include any unauthorised communication of intelligence 
to the enemy even by indirect methods, such as sending letters or sketches, 
or plans, to friends or newspapers. As to injurious disclosures not on active 
service, see s. 36. 

Every one present with an army should bear in mind that the publication 
of letters from the army containing facts and opinions, often entirely erroneous, 



270 



ARMY ACT. 



Part I. 
ss. 5-6, 



Offenoes 
punishable 
more 

severely on 
active 

service than 
at other 
times. 



rclnung to tLo operations or prospects of the campaign, can scarcely fail to 
liave mischievous results ; and it is well known that both during the I'eDin- 
sular and Crimean wars, the enemy were indebted for information to English 
newspapers. See G.O. of Duke of Wellington, dated (Jelorico, 10 Aug., 1810, 
quoted in Simmons on Courts-Martial, p. 67. 

Paragraph (5). The charge must detail the reports alleged to have been spread , 
and should indicate how they were calculated to create unnecessary alarm 
or despondency. A similar remark applies to a charge under paragraph (6). 
It is not necessary to aver or prove that the reports were false, indeed the 
truth may increase the offence; nor is it necessary to show that any effect was 
actually produced by the reports spread or words used: it could, however, 
seldom be expedient to try an officer or soldier under this section for expres- 
sions which could not be shown to have had some effect. The offence under 
paragraph (5) may be committed either with reference to the troops with 
whom the offender is serving, or with reference to the inhabitants of the 
country. 

6. (1.) Every person subject to military law who commits any of 
the following offences, that is to say, 

(a.) Leaves his commanding officer to go in search of plunder ; or 

(6.) Without orders from his superior officer, leaves his guard, 
picquet, patrol, or post ; or 

(c.) Forces a safeguard ; or 

(d.} Forces or strikes a soldier when acting as sentinel ; or 

(e.} Impedes the provost - marshal, or any assistant provost- 
marshal, or any officer or non-commissioned officer, or 
other person legally exercising authority under or on behalf 
of the provost-marshal, or, when called on, refuses to assist 
in the execution of his duty the provost-marshal, assistant 
provost- marshal, or any such officer, non-commissioned 
officer, or other person ; or 

(/.) Does violence to any person bringing provisions or supplies 
to the forces ; or commits any offence against the property 
or person of any inhabitant of or resident in the country 
in which he is serving ; or 

(g.) Breaks into any house or other place in search of plunder ; 
or 

(7<.) By discharging firearms, drawing swords, beating drums, 
making signals, using words, or by any means whatever, 
intentionally occasions false alarms in action, on the march, 
in the field, or elsewhere ; or 

(j.) Treacherously makes known the parole, watchword, or counter- 
sign, to any person not entitled to receive it, or treacher- 
ously gives a parole, watchword, or countersign different 
from what he received ; or 

(j.y Irregularly detains or appropriates to his own corps, battalion, 
or detachment any provisions or supplies proceeding to 
the forces, contrary to any orders issued in that respect ; 
or 



Discipline (Crimes and Punishments). 271 

(/?.) Being a soldier acting as sentinel, commits any of the follow- 
ing offences ; that is to say, s. 8. 
(i) sleeps or is drunk on his post ; or vi ^, 
(ii) leaves his post before he is regularly relieved, sentinel, 

shall, on conviction by court-martial, 

if he commits any such offence on active service, be liable to 
suffer death, or such less punishment as is in this Act men- 
tioned ; and 

if he commits any such offence not on active service, be liable, if 
an officer, to be cashiered, or to suffer such less punishment as 
is in this Act mentioned, and if a soldier, to suffer imprison- 
ment, or such less punishment as is in this Act mentioned. 
(2.) Every person subject to military law who commits any of the 
following offences ; (that is to say), 

(a.) By discharging firearms, drawing swords, beating drums, 
making signals, using words, or by any means whatever, 
negligently occasions false alarms in action, on the march, 
in the field, or elsewhere ; or 

(b.) Makes known the parole, watchword, or countersign to any 
person not entitled to receive it ; or, without good and 
sufficient cause, gives a parole, watchword or countersign 
different from what he received, 

shall on conviction by court-martial be liable, if an officer, to be 
cashiered, or to suffer such less punishment as is in this Act men- 
tioned, and if a soldier, to suffer imprisonment or such less punish- 
ment as is in this Act mentioned. 



XOTE. 

Sub-section (1). The punishment for the offences here mentioned varies 
very widely according as the offences are committed on active service or not on 
active service ; and where a man is charged with committing any of them ou 
active service, those words must always be inserted in the charge. For the 
definition of active service, see section 189 (1). 

(.) This paragraph, having regard to the special military significance 
of the term " plunder," is applicable only to offences committed on active 
service. 

(!).) Post. As used with respect to an individual this word refers to the 
position or place in which it may be the duty of an officer or soldier to be, 
especially when under arms : and with respect in particular to a sentry, it 
applies to the spot where the sentry is left to the observance of his duties by 
the officer or uon-coinmissioned officer posting him ; or to any limits specially 
pointed out as his walk. In determining what, in any particular case, is a 
post, the court will use their military knowledge. See note to (&) below. 

The place in which the person was posted is material and should be stated 
in the charge. 

(c.) Safeguard. A safeguard is a party of soldiers detached for the protec- 
tion of some person or persons, or of a particular village, mansion, or other 
property. A single sentry posted from such party is still part of the saie- 



272 ARMY ACT. 

Part I. guard, and it is as criminal to force him by breaking into the house, cellar, 
or other property under his especial care as to force the whole party. 

(e.) The court may exercise their military knowledge as to whether a person 
was a provost-marshal, assistant provost-marshal or a person legally exer- 
cising authority under or on behalf of the provost-marshal ; but it will be 
open to the accused to show that the person hois charged with impeding was 
not properly appointed provost-marshal or assistant provost-marshal, or was 
not legally exercising the above-mentioned authority. 

(y.) It is frequently of the highest importance to conciliate the inhabitants 
of the country where the troops happen to be, and to induce them to bring 
provisions and supplies. From this point of view an offence which in other 
circumstances would be trivial, may require exemplary punishment. For 
instance, if a trifling theft has the effect of disturbing the confidence of the 
inhabitants and endangering the supplies of the army, the offence deserves 
very severe punishment. As an offence under the paragraph will really be a 
civil offence Avheu not committed on active service, a person should not be 
charged under this paragraph when the offence is committed in the United 
Kingdom or in any other place where there is a civil court competent con- 
veniently to deal with the case (see Ch. VII, para. 3). On the other hand, on! 
active service, offence* which, if committed in the United Kingdom, would be 
tried by a civil court, may be better tried under this enactment. For 
instance, a sutler accused of rape committed on an inhabitant of the country 
might properly be tried under it. The charge must set out the specific acts 
of vio'ence or the specific offence alleged to have been done or committed. 

(_9.) The house or other place should be specified in the charge. 

Plunder. See above note to (). 

(h.') The charge must set out exactly the signal made or the words used. 
If means other than words are used they must be specified briefly in tho 
particulars of the charges ; and the same remark applies to the statement of 
the" elsewhere." 

Intentionally. See note to s. 4 (4), as to "knowingly," and Ch. VII, 
para. 24. 

(t.~) Although treachery must be averred in a charge under this paragraph, 
and want of good and sufficient cause in a charge under sub-section 2 (6), 
the charge need not detail the circumstances of the treachery or of the absence 
of good and sufficient cause. Upon proof that the accused made known the 
watchword to a person not entitled to receive it, or gave a watchword different 
from what he received, the court will be at liberty to infer the treachery or 
the absence of good and sufficient cause, unless the accused can show that 
tie acted from good cause and not treacherously. The charge must aver or 
show that the person was not entitled to receive the watchword. 

Watchword will include any authorised pass-word not being parole or 
countersign which might, for example, be adopted for a particu'ar 
emergency. 

(_/.) The charge must show how the act charged was irregular and contrary 
to orders. 

(/?.) Post. See note to (6) above. The fact of a sentry not being regu- 
larly posted is immaterial. A soldier is liable, if, being one of tho guard or 
body furnishing the sentry for the post, lie has undertaken the duty of 
sentry, even though not posted in the regular way by a non-commissioned 
officer. A sentry found drunk a short distance from his post should be 
charged with leaving his post: he cannot properly be charged wit